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INTERNATIONAL LAW
CONTRIBUTIONS TO INTERNATIONAL
LAW AND DIPLOMACY
Edited by L. Oppenheim, M,A., LL.D., late Whewell
Professor of International Law in the University of
Cambridge.
A GUIDE TO DIPLOMATIC PRACTICE. By
the Right Hon. Sir EknestSatow, G.C.M.G., LL.D.,
D.C.L. , formerly Envoy Extraordinary and Minister
Plenipotentiary. 2 vols. 8vo.
INTERNATIONAL CONVENTIONS AND
THIRD STATES. A Monograph. By Ronald F.
Roxburgh, of the Middle Temple, Barrister-at-Lavf ;
formerly Whewell International Law Scholar in the
University of Cambridge ; formerly Scholar of Trinity
College, Cambridge. 8vo.
THE LEAGUE OF NATIONS AND ITS PRO-
BLEMS. Three Lectures. By L. Oppenheim,
M.A., LL.D. 8vo.
INTERNATIONAL LAW AND THE WORLD
WAR. By James Wilford Garner, Professor of
Political Science in the University of Illinois. 2 vols.
Svo.
LONGMANS, GREEN AND CO.
LONDON, NEW YORK, BOMBAY, CALCUTTA, AND MADRAS
INTERNATIONAL LAW
A TREATISE
By L. OPPENHEIM, M.A., LL.D.
FORMEBLY WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERBITV OF CAM-
BRIDGE, MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW, HONORARY MEMBER
OF THE ROYAL ACADEMY OF JURISPRUDENCE AT MADRID, CORRESPONDING
MEMBER OF THE AMERICAN INSTITUTE OF INTERNATIONAL LAW
Vol. I.— peace
THIRD EDITION
EDITED BY
RONALD F. ROXBURGH
or THE MIDDLE TEMPLE, BARRI8TER-AT-LAW, FORMEBLY WHEWELL
SCHOLAR IN THE UNIVERSITY OF CAMBRIDGE, FORMERLY
SCHOLAR OF TRINITY COLLEGE, CAMBRIDGE
LONGMANS, GREEN AND CO.
39 PATERNOSTER ROW, LONDON
FOURTH AVENUE & 30TH STREET, NEW YORK
BOMBAY, CALCUTTA, AND MADRAS
1920
K
\
All rights reserved
PREFACE
TO THE THIRD EDITION
Lassa Francis Lawrence Oppbnheim, the autiior
of this book, was born near Frankfurt on March 30,
1858. Educated there, and at the Universities of
Berhn, Gottingen, Heidelberg, and Leipzig, he
showed great versatihty of talent, studying philo-
sophy, medicine, and theology as well as law.
Among his teachers were Binding, von Jhering,
and Bluntschli. In 1886 he began to lecture in the
University of Freiburg, and became Extraordinary
Professor there in 1889 ; he was called to a Pro-
fessorial Chair at Basle in 1891. During these years
he wrote several books, mainly upon Criminal Law.
He left Basle for England in 1895, determined to
devote the mature years of his life to International
Law, which he had then recently been teaching. He
studied its varied literature with characteristic
energy, and set himself to write this treatise, first
published in 1905 and 1906. He was then Lecturer
in International Law at the London School of
Economics. In 1902 he married a daughter of
Lieutenant-Colonel Cowan, and had one daughter,
Mary. In 1908 he succeeded Westlake in the Chair
founded at Cambridge by William WheweU, and
made it his constant aim to fulfil the charge given to
the holder ' to lay down such rules and suggest such
measures as may tend to diminish the evils of war
and finally to extinguish war between nations.' He
VI PREFACE TO THE THIKD EDITION
was elected an Associate, and then a Member, of
the Institute of International Law, and an Honorary
Member of the Royal Academy of Jurisprudence at
Madrid. As Whewell Professor he devoted him-
self to the duties of his office, lecturing to large
classes and watching with special care over the
training of Whewell scholars. AH who were thus
drawn within his circle were fascinated by his
enthusiasm and personal charm. He brought out a
second edition of this treatise in 1912, and was
writing monographs and contributing articles to
many papers. He edited the Zeitschrift fiir Voir
kerrecht in collaboration with Kohler until the out-
break of the war. In 1909 he had published Inter-
national Incidents — a book of problems for discussion
with his pupils. A short study of the Panama Canal
Conflict was widely read, and with Greneral Edmonds
he prepared a manual of Land Warfare for the
guidance of Officers of His Majesty's Army. His
next work was to coUect the papers of John Westlake,
and to edit a series of contributions to International
Law and Diplomacy.
During these Cambridge days his reputation had
spread all over the world, and he enjoyed to the f uU
the new opportunity thus brought to him. He
sought, and gained easUy, the friendship of dis-
tinguished jurists everywhere ; and through a
cordial exchange of opinions he was able to study
their varying points of view. For such a work his
training in different legal systems had especially
fitted him, since his conceptions of jurisprudence
were truly international. Visitors came to WheweU
House from many lands, and his wife, who shared
his interest in his work, his friends, and his pupils,
joined in welcoming them to their home. Warmly
received, they went and came again. In the
PREFACE TO THE THIRD EDITION Vll
Professor's private room at the Law Schools is a
gallery of photographs of international lawyers of
almost every nationahty.
Then came the war. The guilty diplomacy of
Grermany, and the crime of the Grerman armies in
Belgium, filled him with horror, to which he gave
public expression. He had already offered his
services to the British Government, and was able
to lend his knowledge and prestige towards the
overthrow of a system which would have throttled
the Law of Nations. The new uses for this book
soon exhausted the second edition ; but he would
not then pubhsh a third, and confined himself to
collecting material and recording the changes which
each day brought. He felt that the stress of events
was too great for him to mould judgments that
should be fashioned in a mind in repose. So he
looked to the United States, then at peace, to sustain
the legal traditions of Litemational Law during the
struggle, and himself became Corresponding Member
of the American Institute of International Law in
1915. He also hoped that an American jurist would
first teU the legal story of the war, and this hope his
friend. Professor Gamer of Illinois, has brought to
fulfilment. With cautious sympathy he watched
the growth of the League of Nations movement,
and three lectures which he had deUvered upon it
were in the press when Germany asked for an
armistice.
He at once began to prepare the new edition of
this treatise. He was eager to point out that
during the World War ' not the whole of International
Law has gone to pieces, but only parts of the Law of
War,' and that ' the Law of Peace is the centre of
gravity of International Law.' But the strain of
the war had overtaxed his health, and the ill ejBfects
VIH PREFACE TO THE THIRD EDITION
now revealed themselves. His friends found him
in the summer of 1919 with his enthusiasm impaired
by physical weariness, and he spoke regretfully of
the mass of new material before him. He doubted
whether he would live to work through it. At the
beginning of August he went to Wales, breaking
away from a study of the German Treaty. He had
just heard that the University was to confer upon
him the degree of Doctor of Letters. Rest and
change did not restore him, and he came home
dangerously ill. He died on October 7, 1919.
This is no place to set a value upon his achieve-
ments, or to voice the affection and esteem of those
who knew him. That is being done by his old friend,
Edward Arthur Whittuck, to whom the former
editions of this treatise were dedicated, in the new
British Year Book of International Law. His power
of insight, his passion for research he gave freely
in the cause of the Law of Nations. His optimism,
so attractive to aU, was tempered by sober under-
standing. ' I will not deny,' he wrote at the end of
the war, ' that the League may fall to pieces ; and
that a disaster like the present may again visit
mankind.' But such thoughts did not deter him.
To him labour in International Law was service for
humanity ; for futiire generations he could give no
more than his best, and would give no less.
It was Oppenheim's practice to work at his book
day by day, now rewriting a paragraph, now marking
a page for revision in the light of an article or a
lecture, now recording new incidents on the ample
and well-ordered leaves of his own copy. So it
was found when he died ; a few chapters, but only
a few, were ready for the printer. But now the
PREFACE TO THE THIRD EDITION IX
rewritten paragraphs, the manuscript notes, have
been embodied in the text. To mark each minor
change in Oppenheim's words unfortunately proved
impracticable, though the attempt was abandoned
with reluctance. However, unnecessary changes
have been scrupulously avoided, and views and
opinions have been nowhere interpolated. So far
the task was less difficult. But in July 1919 the
author's notes ended ; his last unfinished work was
upon the German Treaty, then just signed, and many
crowded months have since gone by. Mrs. Oppen-
heim and Mr. Longman desired that the narrative
shoTild be brought down to the date of publication,
and this has been done by recording events to the
end of May 1920. But the reader will not be at a
loss to distinguish these notes and paragraphs. They
are many that deal with the German Treaty, all
that comprise later happenings, and a few others
which should here be mentioned. Sections 50a and
506 were written with some guidance from the
author's jottings. Developments within the British
Empire made changes in Sections 94a and 94& in-
evitable. Sections 197a to 1 97c had to be revised
to embody the new International Air Convention.
The sections dealing with International Commis-
sions and Offices, which the author had marked for
revision, have been partly rewritten, in order to
incorporate recent events. For the same reason
modifications have been made in Section 476a (the
International Prize Court proposed by the unratified
xnth Hague Convention), and new matter has been
added to Section 476& (proposals for an International
Coxirt of Justice). In the lists of law-making treaties
and of non-political Unions such additions or varia-
tions have been made as were rendered necessary
by the Peace Conference of 1919. The sections
X PREFACE TO THE THIRD EDITION
dealing with the Treaties of Peace and the position of
Unions after the World War are not from Oppen-
heim's pen ; but he had himseK written the impor-
tant sections explaining and discussing the League
of Nations.
It is too much to hope that the editorial work
win always meet with the approval of the reader ;
doubtless many questions which have been anxiously
debated others would have solved differently. But
having accepted a responsibility not easy to dis-
charge, I have striven (with what success I do not
know) to be guided by reverence and affection for
a friend.
Help has come from many quarters, and this is
an opportunity for being grateful. The Table of
Cases has been prepared, and the Index revised,
under the direction of Mr. C. E. A. BedweU, Keeper
of the Middle Temple Library, by his Assistant,
Mr. H, A. C. Sturgess; to Messrs. T. and A. Constable,
who have come to my aid in proof-reading, a par-
ticular debt of gratitude is due.
Ronald F. Roxburgh.
9 Old Square, Lincoln's Inn,
June 29, 1920.
THE WRITINGS OF L. OPPENHEIM
ON INTERNATIONAL LAW
I
BOOKS AND MONOGRAPHS
Intemational Law. A treatise. Longmans, Green and Co.
Vol. i. (Peace) 1905 ; vol. ii. (War) 1906 ; 2nd ed., vols. i.
and ii., 1912.
Litemational Incidents. Cambridge University Press, 1909 ;
2nd ed., 1911.
Die Zukunft des Volkerrechts. Leipzig, 1911.
Land Warfare, (in coUaboration with Colonel — ^now General —
J. E. Edmonds). His Majesty's Stationery Office, 1912.
The Panama Canal Conflict. Cambridge University Press, 1913 ;
2nd ed., 1913.
The League of Nations and its Problems. Longmans, Green and
Co., 1919.
Editor of : The Collected English Papers of John Westlake on
Public Litemational Law. Cambridge University Press,
1914.
Co-Editor of : Zeitschrift fiir Volkerrecht, vols, i.-viii. (1906-
1914).
Editor of : Contributions to Intemational Law and Diplomacy.
Longmans, Green and Co.
II
OTHER WRITINGS
England and Transvaal State Property, (A Letter to Tke Times,
November 24, 1900).
Zur Lehre von den territorialen Meerbusen, (Zeitschrift fiir
Volkerrecht, vol. i. (1906), pp. 579-587).
Der Tunnel unter dem Aermelkanal und das Volkerrecht,
{Zeitschrift fiir Volkerrecht, vol. ii. (1907), pp. 1-16).
The Science of Intemational Law : Its Task and Method,
{American Journal of International Law, vol. ii. (1908),
pp. 313-356).
.^"X VVniilXMiO KIT U. ViTJTJlilVHEIM
The Meaning of Coasting Trade in Commercial Treaties, {Law
QuaHerly Review, vol. xsdv. (1908), pp. 328-334).
Enemy Character after the Declaration of London, {Law Qvarterly
Review, vol. xxv. (1909), pp. 372-384).
The Declaration of London, {Quarterly Review, October 1909,
pp. 464-485).
Die Kscherei in der Moray Firth, {Zeitschrift fiir VolkerrecM,
vol. V. (1911), pp. 74-95).
Introduction to Bentwich, Students' Leading Cases and Statutes
on International Law. Sweet and Maxwell, 1913.
Opinion on the American Institute of International Law, {Revue
g&n&rale de Droit international jmblic, vol. xx. (1913),
pp. 108-111).
Professor Westlake, {Cambridge Review, April 24, 1913).
La Mer territoriale, {Annvaire de I'lnstitut de Droit inter rwtional,
vol. xxvi. (1913), pp. 403-412).
Das Jahrbuch des Volkerrechts, {Zeitschrift fiir VolkerrecM,
vol. "viii. (1914), pp. 95-100).
Die Stellung der feiadlichen Kauffarteischiffe im Seekrieg,
{Zeitschrift fiir VolkerrecM, vol. viii. (1914), pp. 154-169).
Zur Lehre vom intemationalen Gewohnheitsrecht, {Zeitschrift
fiir internationales Recht, vol. xxv. (1915), pp. 1-13).
A Pot Pourri of International Law, {Cambridge Review, January
20 and 27, 1915).
Introduction to Picciotto, The Relations of International Law
to the Law of England and the United States of America.
M'Bride, Nast and Co., 1915.
Introduction to Roxburgh, The Prisoners of War Information
Bureau in London. Longmans, Green and Co., 1915.
Introduction to Satow, A Guide to Diplomatic Practice. Long-
mans, Green and Co., 1917.
Introduction to Roxburgh, International Conventions and Third
States. Longmans, Green and Co., 1917.
On War Treason, {Law Qiiarterly Review, vol. xxxiii. (1917),
pp. 266-286).
The Legal Relations between an Occupying Power and the
Inhabitants, {Law Quarterly Review, vol. xxxiii. (1917), pp.
363-370).
Opinion concerning a League of Nations, {The World Court,
February 1918, pp. 74-76).
' Le Caractere essentiel de la Society des Nations,' {Revv£ gin&rale
de Droit intermitional public, vol. xxvi. (1919), pp. 234-244).
[Events are recorded in this volume down to the end of May 1920.]
ABBREVIATIONS
OF TITLES OF BOOKS, ETC., QUOTED IN THE TEXT
The books referred to in the bibliography and notes are, as a
rule, quoted with their full titles and the date of their publica-
tion. But certain books and periodicals which are very often
referred to throughout this work are quoted in an abbreviated
form, as follows : —
The American Journal of International Law.
Annuaire de I'lnstitut de Droit inter-
national.
Bluntschli, Das modeme Volkerrecht der
civiUsirten Staaten als Bechtsbuch dar-
gestellt, 3rd ed. (1878).
Bonfils, Manuel de Droit international
pubUc, 7th ed. by Fauchille (1914).
Borchard, The Diplomatic Protection of
Citizens Abroad (1915).
Buhnerincq, Das Volkerrecht (1887).
Calvo, Le Droit iatemational th^orique et
pratique, 5th ed. 6 vols. (1888-1896).
Despagnet, Cours de Droit international
public, 4th ed. by de Boeck (1910).
Field, Outlines of an International Code,
2 vols. (1872-1873).
Fiore, Nouveau Droit international public,
deuxieme edition, traduite de I'ltalien et
annotee par Antoine, 3 vols. (1885).
Fiore, International Law Codified. Trans-
lation from the 5th Italian edition by
Borchard (1918).
Gareis, tistitutionen des Volkerrechts, 2nd
ed. (1901).
Grotius, De Jure Belli ac Pacis (1625).
HaU, A Treatise on Iatemational Law, 7th
ed. (1917) by A. Pearce Higgins.
Halleck,|Intemational Law, 4th English ed.
by Sir Sherston Baker, 2 vols. (1908).
xiii
A.J.
Annuaire =
Bluntschli =
Bonfils =
Borchard =
Bulmerincq =
Calvo =
Despagnet =
Field
Fiore =
Fiore, Code =
Gareis =
Grotius =
Hall
Halleck =
XIV
ABBREVIATIONS OF TITLES OF BOOKS
Hartmann =
HefEter
Heilbom, =
System
Hershey =
Holland, =
St^ldies
Holland, =
Jurisprudence
HoltzendorfE =
KLliiber =
Lawrence =
Lawrence, =
Essays
liszt =
Lorimer =
Maine =
Manning =
Martens =
Martens, G. F.=
Martens, R.
Martens, N.R.
Martens, N.S.
Martens, N.R.G.
Martens, N.R.G.
Martens, N.R.G.
Martens, =
Causes
ciUbres
Merignhac =
Hartmann, Institutionen des praktischen
Volkerrechts in Friedenszeiten (1874).
Hefiter, Das europaische Volkerrecht der
Gegenwart, 8th ed. by Geffcken (1888).
Heilbom, Das System des Volkerrechts
entwickelt aus den volkerrechtlichen Be-
griffen (1896).
Hershey, The Essentials of International
PubUc Law (1912).
Holland, Studies in International Law
(1898).
Holland, The Elements of Jurisprudence,
11th ed. (1910).
HoltzendorfE, Handbuch des Volkerrechts,
4 vols. (1885-1889).
Kliiber, Europaisches Volkerrecht, 2nd ed.
byMorstadt (1851).
Lawrence, The Principles of International
Law, 4th ed. (1910).
Lawrence, Essays on some Disputed Ques-
tions of Modem International Law (1884).
Ldszt, Das Volkerrecht, 6th ed. (1910).
Lorimer, The Institutes of International
Law, 2 vols. (1883-1884).
Maine, International Law, 2nd ed. (1894).
Manning, Commentaries on the Law of
Nations, new ed. by Sheldon Amos (1875).
Martens, Volkerrecht, German translation
of the Russian original in 2 vols. (1883).
G. P. Martens, Precis du Droit des Gens
modeme de I'Europe, nouvelle ed. par
Verge, 2 vols. (1858).
These are the abbreviated quo-
tations of the different parts of
Martens, Recueil de Traites (see
p. 118 of this volume), which are
in common use.
2nd Ser,
3rd Ser.
Martens, Causes c61ebres du Droit des Gens,
5 vols., 2nd ed. (1858-1861).
Merignhac, Traite de Droit public inter-
national, vol. i. (1905), vol. ii. (1907),
vol. iii. (1912).
ABBREVIATIONS OF TITLES OP BOOKS
XV
Moore = Moore, A Digest of International Law, 8
vols., Washington (1906).
Nys = Nys, Le Droit international, 3 vols. 2nd ed.
(1912).
Perels = Perels, Das intemationale ofientliche See-
recht der Gegenwart, 2nd ed. (1903).
PhiULmore = PhiUimore, Commentaries upon Interna-
tional Law, 4 vols. 3rd. ed. (1879-1888).
PiedeUevre = Piedelievre, Precis de Droit international
public, 2 vols. (1883-1895).
Praag = L. van Praag, Jurisdiction et Droit inter-
national public (1915).
Pradier- = Pradier-Fodere, Traite de Droit intema-
Fodere tional public, 8 vols. (1885-1906).
Pufendorf = Pufendorf, De Jure Naturae et Gentium
(1672).
Reddie = Reddie, Researches Historical and Critical
in Maritime International Law, 2 vols.
(1844).
R.G. = Revue generalede Droit international public.
R.I. = Revue de Droit international et de Legis-
lation compar^e.
Rivier = Rivier, Principes du Droit des Gens, 2 vols.
(1896).
Satow = Satow, A Guide to Diplomatic Practice, 2
vols. (1917).
Taylor = Taylor, A Treatise on Litemational Pubhc
Law (1901).
Testa = Testa, Le Droit public international mari-
time, traduction du Portugais par Bou-
tiron (1886).
Twiss = Twiss, The Law of Nations, 2 vols. 2nd ed.
(1884, 1875).
Ullmann = Ullmann, Volkerrecht, 2nd ed. (1908).
Vattel = Vattel, Le Droit des Gens, 4 books ia 2 vols.,
nouvelle 6d. (Neuchatel, 1773).
Walker = Walker, A Manual of Public International
Law (1895).
Walker, = Walker, A History of the Law of Nations,
History vol. i. (1899)..
Walker, = Walker, The Science of International Law
Science (1893).
Westlake = Westlake, International Law, 2 vols. 2nd
ed. (1910-1913).
VOL. I. h
XVI
ABBREVIATIONS OF TITLES OF BOOKS
Westlake,
Papers
Wharton
Wheaton
Z.I.
z.v.
The Collected Papers of John Westlake
on Public Intemational Law, ed. by
L. Oppenheim (1914).
Wharton, A Digest of the Intemational Law
of the United States, 3 vols. (1886).
Wheaton, Elements of Intemational Law,
8th American ed. by Dana (1866).
Zeitschrift fur intemationales Recht.
Zeitschrift fiir Volkerrecht.
Treaty of
Peace with
Germany
Treaty of
Peace with
Austria
Treaty of
Peace with
Bulgaria
Treaty with
Poland
Treaty with =
Czecho -Slovakia
Treaty with =
the Serb-Croat-
Slovene State
Treaty with
Boumania
Treaty of Peace between the Allied and
Associated Powers and Germany, signed
at Versailles on June 28, 1919.
Treaty of Peace between the Allied and
Associated Powers and Austria, signed
at Saint-Gtermain-en-Laye on September
10, 1919.
Treaty of Peace between the Alhed and
Associated Powers and Bulgaria, signed
at NeuiUy-sur-Seiae on November 27,
1919.
Treaty of Peace between the United States
of America, the British Empire, Prance,
Italy, Japan (the Principal AUied and
Associated Powers), and Poland, signed at
Versailles on June 28, 1919.
Treaty between the Principal Allied and
Associated Powers and Czecho-Slovakia,
signed at St. Germain-en-Laye on Sep-
tember 10, 1919.
Treaty between the Principal Allied and
Associated Powers and the Serb-Croat-
Slovene State, signed at St. Germain-en-
Laye on September 10, 1919, by the
parties except the Serb-Croat-Slovene
State, which acceded on December 5, 1919.
Treaty between the AUied and Associated
Powers and Roumania, signed at Paris on
December 9, 1919.
TABLE OF CASES
AMna, The, (1918) 34 T.L.R. 199 ; 3 B. and C.P.C. 54. § 21a,
p. 27.
Ambrose Light, The, (1885) 25 Fed. 408. § 273, p. 435 ; § 276,
p. 438.
Andersen v. Unikd States, (1898) 170 U.S. 481 ; Moore, i. p. 932.
§ 147, p. 241.
Aima, The, (1805) 5 C. Eob. 373. § 234, p. 393.
Arkansas, State of v. Tennessee, State of, (1918) 246 U.S. 158. § 199,
p. 361.
Attormy-Gen&ral, Markwald v., [1918] 1 K.B. 617 ; (1920) 36 T.L.E.
197. § 293, p. 464.
Bwrmfels, The, (1915) 1 B. and C.P.C. 102, 122; (1916) 2 B. and
C.P.C. 36. § 183, p. 328.
Bartram v. Eobertson, (1887) 122 U.S. 116. § 580, p. 750.
Becker, Viveash v., (1814) 3 M. & S. 284. § 434, p. 600.
Belgenland, The, (1885) 114 U.S. 355. § 265, p. 428.
Best, Taylor v., (1854) 14 C.B. 487. § 391, p. 569.
Blanco, Wilson v., (1889) 56 N.Y. Super. Ct. 582. § 398, p. 575.
Bolivia, Bepublic of v. Indemmty Mutual Marine Asswance Co.,
[1909] 1 K.B. 785. § 272, p. 434.
Bolivia, Bepublic of, Exploration Syndicate, Ltd., In re, [1914] 1 Ch.
139. § 402, p. 579.
Botiller v. Dormnguez, (1888) 130 U.S. 238. § 546, p. 696.
British Columbia, Attorney-General for v. Canada, Attorney-General for,
[1914] A.C. 153 at p. 174. § 185, p. 334.
Broadmayne, The, [1916] P. 64. § 450, p. 614.
Brwrmoick, Duke of v. Eanover, King of, (1844) 6 Beav. 1 ; 2 H.L.C. 1.
§ 353, p. 535.
Campbell v. Hall, (1774) 1 Cowper 208. § 240, p. 398.
Canada, Attorney-General for; British Colvmbia, Attorney-General fw v.,
[1914] A.C. 153, at p. 174. § 185, p. 334.
Castimi, Ex parte, [l89l] 1 Q.B. 149. § 334, p. 516.
Chambers, K^ennett v., (1852) 14 Howard 38. § 75, p. 139.
Charkieh, The,'{lSn) L.E. 4 A. & E. 59. § 91, p. 165 ; § 450,
p. 614.
J^vui TAJJIiE OJb' CASKS
Charlim v. Kelly, (1913) 229 U.S. 447. § 330, p. 508 ; § 547,
pp. 696, 697.
Chartered Mercantile Bank of India, London, and China v. Xeiherlands
Indian Steam Navigation Co., (1883) 10 Q.B.D. 537. § 265,
p. 428.
Cherokee Tobacco, The, (1870) 11 WalL 616. § 546, p. 696.
Chun Teeong Toy, Musgrove v., [l89l] A.C. 272. § 141, p. 236.
Commanding Officer, — th Battalion, Middlesex Regiment, B. v., (1917)
33 T.L.E. 252. § 302, p. 473.
Constitution, The, (1879) 4 P.D. 39. § 450, p. 614.
Cook V. Sprigg, [1899] A.C. 572. § S2, p. 148.
Crimdon, The, (1918) 35 T.L.R 81. § 450, p. 614.
Cunningham, B. v., (1859) BeU C.C. 86. § 194, p. 348.
De Haber v. Portugal, Queen of, (1851) 17 Q.B. 171, 196. § 115,
p. 197.
De Jager v. NaM, Jttomey-General for, [l907] A.C. 326. .S 317,
p. 493.
Berflinger, The, (1915) 1 B. and C.P.C. 102, 122 ; (1916) 2 B. and
C.P.C. 36. § 183, p. 328.
Devisches Kohlen Depot; Egypt, H.M. Procurator in v., (1916) 2 B.
and C.P.C. 439 ; (1918) 3 B. and C.P.C. 265. § 183, p. 328.
DiOon, In re, (1854) Moore, v. p. 78. § 21a, p. 28.
Dominguez, BotiUer v., (1888) 130 U.S. 238. S 546, p. 696.
Dreyfus Brothers, Peru Bepublic v., (1888) L.R 38 Ch. Div. 348.
§ 77, p. 141.
Egypt, H.M. Procurator in v. Deutsches Kohlen D^ot, (191 6) 2 B. and
C.P.C. 439 ; (1918) 3 B. and C.P.C. 265. § 183, p. 328.
Elida, The, (1915) Z.V., ix. p. 109. § 186, p. 335.
Er^erprise, The, (1855) Moore, Arbitrations, p. 4349. .§ 189, p. 340.
Exchange, The t. M'Faddon and Others, (l 8 1 2) 7 Cianch 116. § 450,
p. 614.
Fama, The, (1804) 5 C. Eob. 106. § 217, p. 379.
Francis, B. v., cr parte MarhvaM, [1918] 1 K.B. 617; (1920)
36 T.L.R. 197. § 293, p. 464.
Francisco de Arra-ngoiz and Others; Mexia>, Bepublic of v., (1855)
11 Howard Pr. Rep. 1. § 115, p. 197.
Gagara, The, [1919] P. 95. § 450, p. 614.
Gam, B. v. (1882) 9 Q.B.D. 93. § 330, p. 506.
Garbutt, Macartney v., (1890) 24 Q.B.D. 368. .§ 375, p. 553 ; § 394,
p. 571.
Gvienfels, The; The Barenfels; The Derfflinger, (1915) 1 B and
C.P.C. 102, 122 ; (1916) 2 B. and C.P.C. 36. § 183, p. 328.
TABLE OF CASES XIX
Habana, The. See Paquete Habana, The.
Hall, Campbell v., (1774) 1 Cowper 208. § 240, p. 398.
Hanover, King of; Brunswick, Dukeofv., (1844) 6 Beav. 1; 2 H.L.C. 1.
§ 353, p. 535.
Helgoland, The, (1915) 1 B. and C.P.C. 248; (1916) 2 B. and
C.P.C. 146. § 183, p. 328.
HeUfeld v. Eussian Government, (1910) Z.F., iv. 309. § 115,
p. 197.
Hvllet V. Spain, King of, (1828) 2 B%h KS. 310. § 348, p. 532.
Huus T. New York and Porto Rico Steamship Co., (1901) 182 U.S.
392. § 579, p. 748.
Imperial Japanese Government v. Peninsular and Oriental Steam
Navigation Co., [1895] A.C. 644. § 253, p. 414.
Indemnity Mutval Marine Assurance Co., Bolivia Bqaublie v., [1909]
1 KB. 785. § 272, p. 434.
India, Secretary of State for v. Sri Raja Chellikani Bama Bao, (1916)
32 T.L.E. 652. § 234, p. 393.
Indian Chief The, (1801) 3 C. Rob. 12. § 434, p. 600.
Ionian Ships, The, (1855) 2 Spints 212. § 93, p. 167.
Japanese Government v. Peninsular and Oriental Steam Navigation
Co., [1895] A,C. 644. § 253, p. 414.
Jassy, The, (1906) 10 Asp. 278. § 450, p. 614.
Johann Friederich, The, (1838) 1 W. Eob. 35. § 265, p. 428.
Johm-e, Sultan of,- Mighell v., [1894] 1 Q.B. 149. § 350, p. 534.
Kelly, Charlton t., (1913) 229 U.S. 447. § 330, p. 508 ; § 547,
pp. 696, 697.
Kennett v. Chambers, (1852) 14 Howard 38. § 75, p. 139.
Keyn, B. v., (1876) L.R 2 Ex. Div. 63. § 25, p. 30.
Zbssrto, Martin, (1853) Wharton, ii. § 175 ; Moore, iii. ^ 490-491 ;
Martens, Causes cMhbres, v. pp. 583-599 ; Borchard, § 250.
§313, p. 486.
Krupp, Famsseur v., (1878) L.R 9 Ch. Div. 351. § 115, p. 197.
Lemora, The, [1918] P. 182 ; [1919] A.C. 974. § 21a, p. 27.
Lifnch, B. v., [1903] 1 K.B. 444. § 306, p. 476.
Macartney v. Garbutt, (1890) 24 Q.B.D. 368. § 375, p. 553 ; § 394,
p. 571.
M'Faddm and Others; Exchange, The v., (1812) 1 Cranch 116. § 450,
p. 614.
MagdaUna Steam Navigation Co. v. Martin, (1859) 2 E. & E. 94.
§ 391, p. 569.
Maori King, The Steamship, [1909] A.C. 562. § 261, p. 423.
Marie Gkeser, The, (1914) 1 B. and C.P.C. 53. § 47, p. 75.
XX TABLE OF CASES
Markwald v. Attorney-General, [1918] 1 KB. 617 ; (1920) 36 T.L.E.
197. § 293, p. 4&4
Marshall v. Mwrgatroyd, (1870) L.R. 6 Q.B. 31. § 264, p. 424.
Martin, Magdalena Steam Navigation Co. v., (1859) 2 E. & E. 94.
§ 391, p. 569.
Maryland V. West Virginia, (1909) 217 U.S. 22. § 243, p. 402.
Messicano, The, (1916) 32 T.L.E. 519. § 450, p. 614.
Mewnier, In re, [1894] 2 Q.B. 415. § 334, p. 516 ; § 338, p. 519.
Mexico, Bepublic of v. Francisco de Arrangoiz and Others, (1855)
11 Howard Pr. Eep. 1. § 115, p. 197.
Mighell v. Johore, Sultan of, [1894] 1 Q.B. 149. § 350, p. 534.
Montezuma, The, (1887) Calvo, i. § 503. § 273 n., p. 436.
Mmtensen v. PeUrs, (1906) 14 Sc. L.T. 227. § 22, p. 29 ; § 192,
p. 345.
Mwrgatroyd, Marshall v., (1870) L.E. 6 Q.B. 31. § 264, p. 424.
Musgrove v. Chwn Teeong Toy, [1891] A.C. 272. § 141, p. 236.
Natal, Attorney-General fm- ; Be Jager v., [1907] A.C. 326. § 317,
p. 493.
Nereide, The, (1815) 9 Cranch 388. § 21a, p. 27.
Netherlands Indian Steam Navigation Co., Chartered Mercantile Bank of
India, London,and China v., (1883) lOQ.B.D. 537. §265,p. 428.
New York and Porto Bico Steamship Co., Huus v., (1901) 182 U.S.
392. § 579, p. 748.
Nicaragua, San Salvador v., (1917) A.J., xi. pp. 693, 700-717.
§ 192, p. 344.
Paquete Habana, The, (1899) 175 U.S. 677. § 21a, p. 27.
Parkinson v. Potter, (1885) 16 Q.B.D. 152. § 394, p. 571.
Parlement Beige, The, (1880) 5 P.D. 197, 214. § 450, p. 614.
Peninsular and Oriental Steam Navigation Co., Japanese Government v.,
[1895] A.C. 644. § 253, p. 414.
Percheman, United States v., (1833) 7 Peters 51. § 84, p. 151 ;
§ 240, p. 397.
Peru Bepublic v. Dreyfus Brothers, (1888) L.E. 38 Ch. D. 348.
§ 77, p. 141.
Peters, Mortensen v., (1906) 14 Sc. L.T. 227. § 22, p. 29 ; § 192,
p. 345.
Pindos, The; The Helgoland; The Bostock, (1915) 1 B. and C.P.C.
248; (1916) 2 B. and C.P.C. 146. § 183, p. 328.
Partena, The, (1887) Calvo, i. § 502. § 273 n., p. 436.
Portugal, Queen of; De Hdber v., (1851) 17 Q.B. 171, 196. § 115,
p. 197.
Potter, Parkinson v., (1885) 16 Q.B.D. 152. § 394, p. 571.
TABLE OF CASES XXI
Pouble,. Cirilo, (1885) Moore, ii. p. 227. § 147, p. 241.
Pmles, Tlumpson v., (1828) 2 Sim. 194. § 75, p. 139.
Prioleau, United States v., (1866) 35 L.J. Ch. 7. § 82, p. 147.
Prioleau v. United States and Andrew Johnson, (1866) L.E. 2 Eq.
659. § 115, p. 197.
B. V. Commanding Officer, — th Battalion, Middlesex Regiment, (1917)
33 T.L.R. 252. § 302, p. 473.
B. V. Cmmvngham, (1859) Bell C.C. 86. § 194, p. 348.
B. V. Francis, ex parte Marlwald, [1918] 1 K.B. 617; (1920)
36 T.L.R. 197. § 293, p. 464.
B. V. Ganz, (1882) 9 Q.B.D. 93. § 330, p. 506.
B. V. Keyn, (1876) L.R. 2 Ex. Div. 63. § 25, p. 30.
R. V. Lynch, [1903] 1 K.B. 444. § 306, p. 476.
B., West Band Central Gold Mining Co. Ltd. v., [1905] 2 K.B.
391. § 21a, p. 26 ; § 82, p. 148.
B. V. Wilson, (1877) 3 Q.B.D. 42. § 330, p. 507.
Bepentigny, United States v., (1866) 5 Wallace 211. § 240, p. 398.
Bepublic of Bolivia Exploration Syndicate, Ltd., In re, [1914] 1 Ch.
139. § 402, p. 579.
Bobertson, Bartram v., (1887) 122 U.S. 116. § 580, p. 750.
Bohertsm, Whitney v., (1887) 124 U.S. 190. § 546, p. 696 ; § 580,
p. 750.
Bostock, The, (1915) 1 B. and C.P.C. 248 ; (1916) 2 B. and C.P.C.
146. § 183, p. 328.
Russian Government, Hellfeldv., (1910) Z.F., iv. 309. § 115, p. 197.
San Salvador v. Nicaragua, (1917) A.J., xi. pp. 693, 700-717. § 192,
p. 344.
Sapphire, The, (1870) 11 Wallace 164. § 115, p. 197.
Sawez, In re, Sawrez v. Sawrez, [1917] 2 Ch. 131 ; [1918] 1 Ch. 176.
§ 391, p. 569 ; § 409, p. 583.
Scotia, The, (1871) 14 Wallace 170. § 12, p. 16 ; § 21o, p. 27.
Smith, United States v., (1820) 5 Wheaton 153. § 21a, p. 27.
Spain, King of; Bullet v., (1828) 2 Bligh N.S. 310. § 348, p. 532-
Sprigg, Cook v., [1899] A.C. 572. § 82, p. 148.
Sri Baja Chellikani Bama Bao/ India, Secretary of State for v., (1916)
32 T.L.R. 652. § 234, p. 393.
Stigstad, The, [1916] P. 123 ; [1919] A.C. 279. § 21a, p. 27.
Sudmark, The (No. 2), (1917) 33 T.L.R 575 ; 2 B. and C.P.C. 473.
§ 21ffl, p. 27 ; § 183, p. 328.
Taylor v. Best, (1854) 14 C.B. 487. § 391, p. 569.
Tennessee, Stateof; Arkansas, State of v., (1918) 246 U.S. 158. § 199,
p. 361.
XXU T^BLE OF CASES
Thmpsm v. Powles, (1828) 2 Sim. 194. § 75, p. 139.
United States, Andersen v., (1898) 170 U.S. 481 ; Moore, i. p. 932.
§ 147, p. 241.
United States v. Percheman, (1833) 7 Peters 51. § 84, p. 151 ;
§ 240, p. 397.
United States v. Prioleau, (1866) 35 L.J. Ch. 7. § 82, p. 147.
United States v. Repentigny, (1866) 5 Wallace 211. § 240, p. 398.
United States v. Smith, (1820) 5 Wheaton 153. § 21a, p. 27.
United States v. Wagner, (1867) L.E. 2 Ch. App. 582. § 115, p. 197.
United States and Andrew Johnson, Prioleau v., (1866) L.E. 2 Eq.
659. § 115, p. 197.
Favassem' v. Kmpp, (1878) L.E. 9 Ch. Div. 351. § 115, p. 197.
Viveash v. Becker, (1814) 3 M. & S. 284. § 434, p. 600.
Wagner, United States v., (1867) L.E. 2 Ch. App. 582. § 115, p. 197.
West Band Central Gold Mining Co. Ltd. v. Bex, [1905] 2 K.B. 391.
§ 21a, p. 26 ; § 82, p. 148.
West Virginia, Maryland v., (1909) 217 U.S. 22. § 243, p. 402.
WhUney v. Robertson, (1887) 124 U.S. 190. § 546, p. 696 ; § 580,
p. 750.
Wildenhus, (1886) 120 U.S. 1. § 189, p. 339.
Wilsm V. BUnco, (1889) 56 N.Y. Super. Ct. 582. § 398, p. 575.
Wilson, B. v., (1877) 3 Q.B.D. 42. § 330, p. 507.
Zamora, The, [1916] P. 27 ; [1916] 2 A.C. 77 ; 1 B. and C.P.C.
309 ; 2 B. and C.P.C. 1. § 21a, p. 27.
CONTENTS
OP
THE FIRST VOLUME
INTRODUCTION
FOUNDATION AND DEVELOPMENT OF THE
LAW OF NATIONS
CHAPTER I
FOUNDATION OF THE LAW OF NATIONS
I. The Law of Nations as Law
ii 1. Conception of the Law of Nations ...... 1
2. Legal Force of the Law of Nations contested .... 3
3. Characteristics of Rules of Law ...... 4
4. Law-giving Authority not essential for the Existence of Law . 5
5. Definition and three Essential Conditions of Law ... 6
6. Law not to be identified with Municipal Law .... 7
7. The ' Family of Nations ' a Community ..... 8
8. The ' Family of Nations ' a Community with Rules of Conduct . 10
9. External Power for the Enforcement of Rules of International
Conduct ......... 11
10. Practice recognises Law of Nations as Law .... 12
n. Basis of the Law of Nations
11. Common Consent the Basis of Law . . . . .14
12. Common Consent of the Family of Nations the Basis of Inter-
national Law ........ 15
13. States the Subjects of the Law of Nations .... 17
14. Equality an Inference from the Basis of International Law . 18
III. Sources of the Lanv of Nations
15. Source in contradistinction to Cause
16. The two Sources of International Law .
17. Custom in contradistinction to Usage
18. Treaties as Source of International Law .
19. Factors influencing the Growth of International Law
19
20
21
22
23
ixiii
XXIV CONTENTS OF
IV. BelaHona between International and Municipal Law
SECT. PAGE
20. Essential Difierenoe between International and Municipal Law . 25
21. Law of Nations never per se Municipal Law . . . ■ 25
21o. Law of Nations and British and Axnerican Municipal Law . 26
22. Certain Rules of Municipal Law necessitated or interdicted . 28
23. Presmnption against Conflicts between International and Muni-
cipal Law .......•■ 29
24. Presumption of Existence of certain necessary Municipal Bules . 29
25. Presumption of the Existence of certain Municipal Rules in
conformity with Rights granted by the Law of Nations . 30
V. Dominion of the Law oj Nations
26. Range of Dominion of International Law controversial . . 31
27. Three Conditions of Membership of the Family of Nations 32
28. Present Range of Dominion of the Law of Nations ... 33
29. Treatment of States outside the Family of Nations ... 36
VI. Codification of the Law of Nations
30. Movement in favour of Codification ..... 37
31. Work of the First Hague Peace Conference . . . .40
32. Work of the Second Hague Peace Conference and the Naval
Conference of London ....... 40
33. Value of Codification of International Law contested . . 42
34. Merits of Codification in general ...... 42
35. Merits of Codification of International Law . . .44
36. How Codification could be realised ..... 46
CHAPTER II
DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS
I. Development of the Law of Nations before Grotius
37. No Law of Nations in antiquity ...... 48
38. The Jews 49
39. The Greeks 52
40. The Romans 54
41. No Need for a Law of Nations during the Middle Ages . . 56
42. The Fifteenth and Sixteenth Centuries 58
n. Development of the Law of Nations after Oroiius
43. The Time of Grotius ....
44.- The period 1648-1721 .
45. The period 1721-1789 .
46. The period 1789-1815 .
47. The period 1815-1856 .
48. The period 1856-1874 .
49. The period 1874-1899 .
50. The period 1899-1914 .
50a. The World War : 1914-1918 ....
505. The Peace Conference after the World Wax : 1918-1920
63
65
68
69
71
73
76
79
87
91
61. Seven Lessons of the History of the Law of Nations . 93
THE FIRST VOLUME XXV
III. The Science of the Law of Nations
KBCT, TkOT
62. Forerunners of Grotiua ........ 98
63. Grotiue 100
64. Zouohe 103
fiS. The Naturalists 104
66. The PoeitiviBtfl 105
67. The Grotians 107
68. Treatises o£ the Nineteenth and Twentieth Centuries . . 100
69. The Science of the Law of Nations in the Nineteenth and
Twentieth Centuries as represented by Treatises . .114
60. Collections of Treaties 118
61. Bibliographies 120
62. Periodicals 120
PART I
THE SUBJECTS OF THE LAW OF NATIONS
CHAPTER I
INTERNATIONAL PERSONS
I. Sovereign Slates as International Persons
63. Real and apparent International Persons
64. Conception of the State ......
66. Not-full Sovereign States
66. Divisibility of Sovereignty contested ....
67. Meaning of Sovereignty in the Sixteenth and Seventeenth Cen-
turies .........
68. Moaning of Sovereignty in the Eighteenth Century .
69. Meaning of Sovereignty in the Nineteenth Century .
70. Result of the Controversy regarding Sovereignty
125
126
127
129
129
131
131
133
II. BecognMon of States as International Persons
71. Recognition a Condition of Membership of the Family of Nations 134
72. Mode of Recognition ........ 135
73. Recognition under Conditions ...... 136
74. Recognition timely and precipitate ..... 137
76. State Recognition in contradistinction to other Recognitions , 139
III. Changes in the OondMon of International Persons
76. Important in contradistinction to Indifferent Changes . . 140
77. Changes not aSecting States as International Persons . . 141
78. Changes affecting States as International Persons . . .142
70. Extinction of International Persons . . . . .143
XXVI CONTENTS OF
IV. Succession of International Persons
SECT. PAGE
80 . Common Doctrine regarding Succession of International Persons 1 44
81. How far Succession actually takes place . . .146
82. Succession in consequence of Absorption .... 146
83. Succession in consequence of Dismemberment . . 149
84. Succession in case of Separation or Cession . . . 151
V. Composite International Persons
85. Seal and apparent Composite International Persons . . 153
86. States in Personal Union . ..... 154
87. States in Beal Union ...... . 154
88. Confederated States (StaMeribund) ..... 156
89. Federal States (Bundesataaten) ..... 157
VI. Vassal States
90. The Union between Suzerain and Vassal State . . 161
91. International Position of Vassal States . ... 162
VII. States under Protectorate
92. Conception of Protectorate ....... 165
93. International Position of States under Protectorate . 166
94. Protectorates outside the Family of Nations .... 168
Vm. Self-governing Dominions
94a. Former Position of Self-governing Dominions . .169
946. Present Position of Self-governing Dominions . . 170
IX. Neutralised States
95. Conception of Neutralised States .
96. Act and Condition of Neutralisation
97. International Position of Neutralised States
98. Switzerland .....
99. Belgium
100. Luxemburg .....
101. The former Congo Free State
171
172
173
176
176
177
178
X. Non-Christian States
102. No essential diJEference between Christian and other States . 179
103. International Position of non-Christian States except Turkey
and Japan ......... 180
XI. The Holy See
104. The former Papal States
105. The Italian Law of Guaranty .....
106. International Position of the Holy See and the Pope
106a. Position of the Holy See and the Pope when Italy is at War
107. Violation of the Holy See and the Pope
182
182
184
186
187
THE FIRST VOLUME
XXVll
Xn. Slates at present International Persons
fiECT. PAQK
108. European States 188
109. Amerioan States 189
110. African States 190
111. Asiatic States 191
CHAPTEE II
POSITION OF THE STATES WITHIN THE FAMILY OF NATIONS
I. IniematioTUil Personality
112. The so-called Fundainent«d Rights ....
113. International PersonaUty a Body of Qualities
114. Other Characteristics of the Position of the States within the
Family of Nations ......
192
194
195
n. Egtudity, Bank, and Titles
115. Legal EquaUty of States
116. Political Hegemony of Great Powers
117. Rank of States ....
118. The ' Altemat ' .
119. Titles of States .
in. Dignity
120. Dignity a Quality
121. Consequences of the Dignity of States
122. Maritime Ceremonials .
203
204
205
IV. Independence and Territorial and Personal Supremacy
123. Independence and Territorial as well as Personal Supremacy £ks
Aspects of Sovereignty ....... 206
124. Consequences of Independence and Territorial and Personal
Supremacy ......... 207
125. Violatione of Independence and TerritoriaJ and Personal
Supremacy ......... 208
126. Restrictions upon Independence . . ... 209
127. Restrictions upon Territorial Supremacy . 211
128. Restrictions upon Personal Supremacy ... . 213
V. Self-preservation
129. Self-preservation an Excuse for Violations
130. What Acts of Self-preservation are Excused
131. Case of the Danish Fleet (1807) .
132. Case of Amelia Island (1817)
133. Case of The Caroline (1837) .
133a. American Punitive Expedition into Mezioo (1916)
1336. The Occupation of Juarez (1919)
133c. The German Invasion of Luxemburg and Belgium (1914)
214
216
216
217
218
218
219
220
AiVlU CONTENTS OF
VI. Intervention
SSCT.
134. Conception and Character of Intervention
135. Intervention by Bight ....
136. Admissibility of Intervention in default of Bight
137. Intervention in the Interest of Humanity
138. Intervention de /octo a Matter of Policy
139. The Monroe Doctrine .....
140. Merits of the Monroe Doctrine
VII. Intercourse
141. Intercourse a Presupposition of International Personality . 235
142. Consequences of Intercourse as a Presupposition of International
Personality 236
Vin. Jurisdiction
143. Jurisdiction important for the Position of the States within
the Family of Nations . 237
144. Bestrictions upon Territorial Jurisdiction .... 238
145. Jurisdiction over Citizens Abroad . . . . 238
146. Jurisdiction on the Open Sea ... . 239
147. Criminal Jurisdiction over Foreigners in Foreign States . 239
CHAPTEK III
RESPONSIBILITY OP STATES
I. On State Responsibility in general
148. Nature of State BesponsibUity .... . 242
149. Original and Vicarious State BesponsibiUty . . . 244
150. Essential Difference between Original and Vicarious Besponsi-
bility 245
II. State Responsibility for International Delinquencies
151. Conception of International Delinquencies .... 245
152. Subjects of International Delinquencies .... 246
153. State Organs able to commit International Delinquencies . 247
154. No International Delinquency without Malice or Culpable
NegUgence ......... 248
155. Objects of International Delinquencies . ... 248
156. Legal Consequences of International Delinquencies . . 249
in. State Responsibility for Acts of State Organs
157. BesponsibiUty varies with Organs concerned .... 251
158. Internationally Injurious Acts of Heads of States . . . 251
159. Internationally Injurious Acts of Members of Government . 252
160. Internationally Injurious Acts of Diplomatic Envoys . . 252
161. Internationally Injurious Attitudes of Parliaments . . 253
162. Internationally Injurious Acts of Judicial Functionaries . . 253
163. Internationally Injurious Acts of Administrative Officials and
Military and Naval Forces ••.... 255
S1ECT.
THE FIRST VOLUME XXIX
IV. State Responsibility for Acts of Private Persons
164. Vicarious in contradistinction to Original State Responsi-
bility for Acts of Private Persons ..... 258
165. Vicarious Responsibility for Acts of Private Persons relative
only 259
166. Municipal Law for OSenoes against Foreign States . 259
167. Responsibility for Acts of Insurgents and Rioters . . . 260
CHAPTER IV
THE LEAGUE OF NATIONS EMBODYING THE FAMILY OF NATIONS
I. Birth and OenercU Character of the League
167a. How the League arose ....... 264
1676. The Membership of the League ...... 266
167c. Essential Character of the League ..... 268
n. TJie Constitution of the League
167<2. The Constitution in general of the League
167e. The Assembly
167/. The Council
167</. The Permanent Secretariat
I61h. Various other Organs of the League
270
272
273
277
278
m. The Function of the League
167». The Two Purposes of the League ... 280
167fc. Peaceful Settlement of International Disputes 282
1672. Reduction of Armaments ....... 284
167m. Guarantee against Aggression ...... 285
167n. Open Diplomacy . ... . . . 285
167o. Reconsideration of Treaties and International Conditions . 286
167p. Guardianship over certain Peoples ..... 287
167?. International Co-operation ...... 288
IV. Defects and Merits of the Constitution of the League
167r. Objections in general to the Constitution of the League. 291
167«. Defects of the Constitution of the League .... 297
167«. Merits of the Constitution of the Lea^e .... 300
PAET II
THE OBJECTS OF THE LAW OF NATIONS
CHAPTER I
STATE TERRITORY
I. On State Territory in general
168. Conception of State Territory ..... . 305
169. Difierent Kinds of Territory . 3O6
170. Importance of State Territory .... 307
171. One Territory, one State . 308
u
XXX CONTENTS OF
11. The Different Parts of State Territory
BBCT. PAGB
172. Real and Fictional Parts of Territory . . . 311
173. Territorial Subsoil .312
174. Territorial Atmosphere ... . . 312
175. Inalienability of Parts of Territory . . . . 313
III. Rivers
176. Rivers State Property of Riparian States . . . .314
177. Navigation on National, Boundary, and not-National Rivers . 315
178. Navigation on International Rivers ..... 316
178a. Utilisation of the Flow of Rivers .... 321
IV. Lakes and Land-locked Seas
(/•'' 179. Lakes and Land-locked Seas State Property of Riparian States . 322
180. So-called International Lakes and Land-locked Seas . . 323
181. The Caspian Sea and the Black Sea ..... 324
V. Canals
182. Canals State Property of Riparian States .... 326
183. The Suez Canal . . . . . 326
I'-^Sa. The Kiel Canal . . 329
184. The Panama Canal 329
VI. Maritime Belt
185. State Property of Maritime Belt contested .... 333
186. Breadth of Maritime Belt 334
187. Fisheries, Cabotage, Police, and Maritime Ceremonials within
the Belt .... .... 336
188. Navigation within the Belt . . .... 337
189. Jurisdiction within the Belt 338
190. Zone for Revenue and Sanitary Laws ..... 340
190o. No Maritime Belt around Lighthouses in the Sea . . . 341
t^
VII. Crulfs and Bays
191. Territorial Gulfs and Bays 342
192. Non-territorial Gulfs and Bays ...... 344
193. Navigation, Fishery, and Jurisdiction in Territorial Gulfs and
Bays 346
VIII. Straits
194. What Straits are Territorial 347
195. Navigation, Fishery, and Jurisdiction in Straits . . . 348
196. The former Sound Dues •-..... 349
197. The Bosphorus and Dardanelles ...... 350
IX. The Air and Aerial Navigation
197o. Questions raised by Aerial Navigation before the World War . 353
1976. Aerial Navigation in the United Kingdom from 1914 to the
Present Time . . . . . . . _ 354
197o. The International Air Convention . . . . _ 354
THE PlBST VOLUME
XXXI
X. Boundaries of State Territory
198. Katnral and ArtiJScial Boundaries
i-^99. Boundary Waters
200. Boundary Mountains .
\,^X. Boundary Disputes
202. Katural Boundaries sensu politico
XI. State Servitudes
203. Gonoeption of State Servitudes
204. Subjects of State Servitudes
205. Object of State Servitudes .
206. Different Kinds of State Servitudes
207. Validity of State Servitudes
208. Extinction of State Servitudes
PAQK
360
361
362
362
363
364
366
367
369
370
371
XII. Modes of acquiring State Territory
'— 209. Who can acquire State Territory ? . . .
210. Former Doctrine concerning Acquisition of Territory
211. What Modes of Acquisition of Territory there are .
212. Original and Derivative Modes of Acquisition
372
374
374
375
l-^III. Cession
213. Conception of Cession of State Territory .... 376
214. Subjects of Cession ........ 376
215. Object of Cession 377
216. Form of Cession 378
217. Tradition of the Ceded Territory 379
218. Veto of Third Powers 380
219. Plebiscite and Option 381
'-XIV. Occupation
220. Conception of Occupation ....... 383
221. Object of Occupation 383
222. Occupation, how efiected ....... 384
223. Inchoate Title of Discovery 385
224. Notification of Occupation to other Powers .... 386
225. Extent of Occupation ........ 386
226. Protectorate as Precursor of Occupation .... 388
227. Spheres of Influence 388
228. Consequences of Occupation ...... 389
^ XV. Accretion '
229. Conception of Accretion ....... 390
230. Different Kinds of Accretion ...... 391
231. Artificial Formations 391
232. Alluvions 392
233. Deltas 392
234. New-born Islands 393
235. Abandoned Biver-beds 393
VOL. I. C
V^V^X^ J.X!ji.^XO
OF
XVI. Svhjitgation
\/
236. Conception of Conquest and of Subjugation .
237. Subjugation in contradistinction to Occupation
238. Justification of Subjugation as a Mode of Acquisition
239. Subjugation of the Whole or of a Part of Enemy Territory
240. Consequences of Subjugation .....
241. Veto of Third Powers .
XVII. Prescription
\J
242. Conception of Prescription
243. Prescription, how effected
XVin. Lose of Suae Territory
244. Six Modes of losing State Territory
246. Operation of Nature .....
246. Eevolt
247. Dereliction
PAGE
394
395
396
396
397
399
400
401
403
404
404
405
CHAPTER II
THE OPEN SEA
I. Rise of the Freedom of the Open Sea
248. Former Claims to Control over the Sea
249. Practical Expression of Claims to Maritime Sovereignty
250. Grotius' Attack on Maritime Sovereignty
251. Gradual Recognition of the Freedom of the Open Sea
II. Conception of the Open Sea
252. Discrimination between Open Sea and Territorial Waters .
253. Clear Instances of Parts of the Open Sea
III. The Freedom of the Open Sea
254. Meaning of the Term ' Freedom of the Open Sea "
255. Legal Provisions for the Open Sea
256. Freedom of the Open Sea and War
257. Navigation and Ceremonials on the Open Sea
258. Claim of States to Maritime Flag .
259. Rationale for the Freedom of the Open Sea .
IV. Jurisdiction on the Open Sea
260. Jurisdiction on the Open Sea mainly connected with Flag
261. Claim of Vessels to sail under a certain Flag .
262. Ship Papers
263. Names of Vessels ......
264. Territorial Quality of Vessels on the Open Sea
265. Safety of Traffic on the Open Sea
266. Powers of Men-of-War over Merchantmen of all Nations
267. How Verification of Flag is effected
268. How Visit is effected ......
269. How Search is effected .....
270. How Arrest is effected .....
271. Shipwreck and Distress on the Open Sea
407
409
410
412
413
414
41^
416
417
418
418
420
421
422
423
424
424
425
428
430
430
431
431
432
THE FIRST VOLUME XXXIU
V. Piracy
8BCT. PAOB
272. Conception of Piracy 433
273. Private Ships as Subjects of Piracy ..... 434
274. Mutinous Crew and Passengers as Subjects o£ Piracy . . 436
275. Object of Piracy 437
276. Piracy, how effected 437
277. Where Piracy can be committed ...... 438
278. Jurisdiction over Pirates, and their Punishment . . . 438
279. Piraia non miUat domvmvm, ....... 439
280. Piracy according to Municipal Law ..... 440
VI. Fisheries in the Open Sea
281. Fisheries in the Open Sea free to all Nations .... 441
282. Fisheries in the North Sea
283. Bumboats in the North Sea ....
284. Seal Fisheries in the North Pacific Ocean
285. Fisheries around the Faroe Islands and Iceland
442
443
444
446
VII. Telegraph Cables in the Open Sea
286. Telegraph Cables in the Open Sea permitted .... 447
287. International Protection of Submarine Telegraph Cables . . 447
VIII. Wireless Telegraphy on the Open Sea
287a. Unsatisfactory Results of the Wireless Telegraphy Conference
of Berlin 448
2876. Results of the Wireless Telegraphy Conference of London . 449
IX. The Stihsoil beneath the Sea Bed
287c. Five Rules concerning the Subsoil beneath the Sea Bed . 451
287d. The proposed Channel Tunnel 453
CHAPTER III
INDIVIDUALS
1. Position of Individuals in International Law
288. Importance of Individuals to the Law of Nations . . . 456
^ 289. Individuals never Subjects of the Law of Nations . . . 456
290. Individuals Objects of the Law of Nations .... 460
291. Nationality the Link between Individuals and the Law of
Nations ......... 460
292. The Law of Nations and the Rights of Mankind . . . 461 '<>
II. Nationality
j// 293. Conception of Nationality 463
/^94. Function of Nationality 465
23b. So-called Protigis and de facto Subjects .... 465
296. Nationality and Emigration ...... 467
XXXIV
CONTENTS OF
III- Modes of Acquiring and Losing NationdHty
297. Five Modes of Acquisition of Nationality
■98. Acquisition of Nationality by Birth ....
299. Acquisition of Nationality through Naturalisation .
300. Acquisition of Nationality through Redintegration.
301. Acquisition of Nationality through Subjugation and Cession
302. Five Modes of losing Nationality .....
L^-
TV.
NaMralisation in, especial
303. Conception and Importance of Naturalisation .
304. Object of Naturalisation
305. Conditions of Naturalisation
306. Effect of Naturalisation upon Previous Citizenship .
307. Naturalisation in Great Britain ....
PAGE
468
468
469
471
471
471
474
475
475
476
476
V. Double and Absent NcOionaHty
308. Possibility of Double and Absent Nationality . 481 '
309. How Double Nationality Occurs 482
y--^10. Position of Individuals with Double Nationality . . 483 '
311. How Absent Nationality Occurs ...... 484
312. Position of Individuals destitute of Nationality . . . 484
313. Bedress against Difficulties arising from Double and Absent
Nationality ......... 485
VI. Reception of Aliens and Bight of AsyUim
314. No Obligation to admit Aliens ...... 488
315. Eeception of Aliens under Conditions ... . 489
316. So-called Bight of Asylum . . 490
VII. Position of Aliens after Reception
317. Aliens subjected to Territorial Supremacy .... 491''
318. Aliens in Eastern Countries ....... 493
319. Aliens under the Protection of their Home State . . 494
320. Protection to be afforded to the Persons and Property of Aliens 496'
321. How far Aliens can be treated according to Discretion . . 496
322. Departure from the Foreign Country ..... 497
VIII. Expulsion of Aliens
323. Competence to expel Aliens ....
324. Just Causes of Expulsion of Aliens
325. Expulsion, how effected ....
326. Beconduction in contradistinction to Expulsion
498
499
501
601
IX. Extradition
327. Extradition no Legal Duty .
328. Extradition Treaties, how arisen
329. Municipal Extradition Laws
330. Object of Extradition .
331. Extraditable Crimes .
332. Effectuation and Condition of Extradition
503
503
605
506
508
509
THE FIRST VOLUME
XXXV
X. Pmtcipfe 0/ non-Exiradition of Political Criminala
SSOT. PACK
333. How non-Extradition of Political Criminals became the Rule . 612
334. Difficulty concerning the Conception of Political Crime . .515
335. The so-called Belgian Attentat Clause ..... 516
336. The Russian Project of 1881 517
337. The Swiss Solution of the Problem in 1892 . . . .517
338. Rationale for the Principle of non-Extradition of Political
Criminals ......... S18
339. How to avoid Misapplication of the Principle of non-Extradition
of Political Criminals . . . . . . .521
340. Reactionary Extradition Treaties 522
PART III
OBOANS OF THE STATES FOB THEIB INTEBNATIONAL
BELATIONS
CHAPTEE I
HEADS OF STATES, AND FOREIGN OFFICES
I. Position of Heada of States according to International Law
341. Necessity of a Head for every State
342. Recognition of Heads of States
343. Competence of Heads of States .
344. Heads of States Objects of the Law of Nations
345. Honours and Privileges of Heads of States .
527
628
529
529
630
II. Monarcha
346. Sovereignty of Monarchs ....
347. Consideration due to Monarchs at Home
348. Consideration due to Monarchs Abroad
349. The Retinue of Monarchs Abroad
350. Monarchs travelling Incognito
361. Deposed and Abdicated Monarchs
352. Regents
353. Monarchs in the Service or Subjects of Foreign Powers
531
631
531
633
633
534
634
536
III. Presidents of BepvhUcs
364. Presidents not Sovereigns ....
366. Position of Presidents in general .
366. Position of Presidents Abroad
536
536
536'
IV. Foreign Offices
367. Position of the Secretary for Foreign Affairs
537 i
XXXVl CONTENTS OF
CHAPTER II
DIPLOMATIC ENVOYS
I. The Institution of Legation
SKOT. PAOB
358. Development of Legations .....•• 539
359. Diplomacy 641
II. Right of Legation
360. Conception of Right of Legation 542
36L What States possess the Bight of Legation . . .543
362. Bight of Legation, by whom exercised ..... 644
III. Kinds and dosses of Diplomatic Envoys
363. Envoys Ceremonial and Political ....
364. Classes of Diplomatic Envoys ....
365. Ambassadors .......
386. Ministers Plenipotentiary and Envoys Extraordinary
367. Ministers Resident ......
368. Charges d'AHaires
369. The Diplomatic Corps
64S.
646
547
647
548
648
648
IV. Appointment of Diplomatic Envoys
370. Person and Qualification of the Envoy ..... 649
371. Letter of Credence, Full Powers, Passports .... 660
372. Combined Legations ........ 661
373. Appointment of Several Envoys ...... 661
V. Reception of DiplomMia Envoys
374. Duty to receive Diplomatic Envoys ..... 652
375. Refusal to receive a certain Individual ..... 663
376. Mode and Solemnity of Beception ..... 654
377. Beception of Envoys to Congresses and Conferences, and to the
League of Nations ........ 566
VI. Functions of Diplomatic Envoys
378. On Diplomatic Functions in general
379. Negotiation ....
380. Observation ....
381. Protection ....
382. Miscellaneous Functions
383. Envoys not to interfere in Internal Politics
556
666
567
557
557
568
VII. Position of Diplomatic Envoys
384. Diplomatic Envoys Objects of International Law . . . 659
385. Privileges due to Diplomatic Envoys ..... 659 ^
VIII. InviolahiUty of Diplomatic Envoys
386. Protection due to Diplomatic Envoys ..... 560
387. Exemption from Criminal Jurisdiction . . . 58I 'f^
388. Limitation of Inviolability 562 '^
TTTR JIBST VOLUME XXXVIl
TX. Kjcterritorialibi of Diplomalic Smtojis
SStCT. PAGE
389. Beason and fictional Character of ExteEritorialhy. . 563
390!. Immonity of DranicOe .... . 964
391. ExanptJOD {mm Oiniinal and (Sril Jmisdictian 568
392. Kxamption iaaa Snl^MBna as Witnesses .... 569
393. Sxaniptaon from Pidioe ... 570
391k K munition from Taxes and the Kke ... 571
395. K^ oi Caiapel . . . ... 571
396. S^-jan9dicticHi . . . . 572
X. Pomtioii oflUplommtie Smtoga as ngarda Tkiid StaUa
397. FOssifaleCtees 573
39S. Sn^oy fenveSing tfaion^ Tbtiilmy of Third State 574
399. £nvoy foond by BelUgeieot om Oeeiqued Enemy T^ritary 576
400. Envoy inteEfacing with A&irs of a Third Siaie . . 577
XL The Bftame of Dtptmmalie Biueoga
401. DilTuruut flaBHes of Tffpmheis vi Betinne . . . 577
4QS. Privileges of Monhezs of Ligation 578
403. Privileges of Private Savants 579
4M. Privileges of Family of Kivoy 580
40d. Privileges of OomKis of Envoy 580
XM. Termimatim of IHplomatie Misnon
406. Twtnination in oraitiadEitinction to So^oisiDn . . 581
407. AecnmpKshnipnt of Object of llEsion ..... 583
408. Espiratiim of Letter of Credence . . . .582
409. Beean ... .582
410. Promotion to a Hi^ner Clas . . 584
411. Delivery of Pas^XKts ... . 584
412. BeqaestforPaaeportf . . 584
413. Outbreak of War . 584
414. OoDB^to^onal CSiang^ . . . . 585
415u BeviduUonary Changes of Govanment . . . 585
416. Extinetiom of sending or receiving State . 586
417. Death of Envoy 586
CHAPTER m
COXSTTLS
L The Inali^^oK of Cona^
418. Develo[Hnent of the Institiition of Oonsnls . 588 *
419. General CSiazacter of Gonsuls 590
ZL Conmdar Orgamiiation
42a Difioent Kinds of CcHsnls . 591
42L CoosDlar Dbtriets . . . 592
422. Di^amt ClaiSRPs of Cmsnk . . ... 592
423. Consols snlxKdinate to Diplomatic Envoys .... 593
XXXVIU
CONTENTS OF
III. Appointment of Coneula
SECT,
424. Qualification of Candidates ....
425. No State obliged to admit Consuls
426. What Kind of States can appoint Consuls
427. Mode of Appointment and of Admittance
428. Appointment of Consuls includes Recognition
PAGE
594
594
595
695
596
rV. Functions of Consuls
429. On Consular Functions in general
430. Promotion of Commerce and Industry
431. Supervision of Navigation .
432. Protection
433. Notarial Functions
597
597
597
598
598
V. Position and Privileges of Consuls
434. Position
435. Consular Privileges ......
599
601
VI. Termination of Consular Office
436. Undoubted Causes of Termination ..... 602
437. Doubtful Causes of Termination 602
438. Change in the Headship of States not Cause of Termination . 603
VII. Consuls in non-Christian States
439. Position of Consuls in certain non-Christian States . . 604
440. Consular Jurisdiction in certain non-Christian States . . 605
441. International Courts in Egypt ...... 605
442. Exceptional Character of Consuls in certain non-Christian States 606
CHAPTER rV
MISCELLANEOUS AGENCIES
I. Armed Forces on Foreign Territory
443. Armed Forces State Organs
444. Occasions for Armed Forces Abroad
445. Position of Armed Forces Abroad
446. Caee oiM'Leod ....
446a. The Casa Blanca Incident .
607 '
607
608
609
610
II. Men-of-war in Foreign Waters
447. Men-of-war State Organs
448. Proof of Character as Men-of-war
449. Occasions for Men-of-war Abroad
450. Position of Men-of-war in Foreign Waters
451. Position of Crew when on Land Abroad
612
612
613
614-
616
THE FIRST VOLUME
XXXIX
III. Agents viithout Diplomatic or ConaiUar Character
SECT.
452. Agents lacking Diplomatic or C!onsvilar Character
453. Public Political Agents
454. Secret Political Agents
455. Spies.
456. Commissaries
457. Bearers of Despatches
PAOS
616
617
617
618
619
619
IV. International Commissions
458. Permanent in contradistinction to Temporary Commissions
459. Commissions in the Interest of Navigation
460. Commissions in the Interest of Sanitation
461. Commissions in the Interest of Foreign Creditors .
462. Permanent Commission concerning Sugar
462a. Permanent Commissions to advise the League of Nations
4626. Permanent Commission in the Interest of Laboiu- .
462c. Permanent International Commission for Air Navigation
620
621
623
624
624
624
624
624
V. International Offices
463. Character of International Offices ..... 625
464. International Telegraph Office 626
465. International Post Office 626
466. International Office of Weights and Measures . . . 626
467. International Office for the Protection of Works of Literature
and Art and of Industrial Property .... 626
467o. The Pan-American Union ....... 626
468. Former Maritime Office at Zanzibar, and Bureau Special at
Brussels ..... ... 627
469. International Office of Customs Tariffs ..... 627
470. Central Office of International Transports .... 627
471. Permanent Office of the Sugar Convention .... 627
47.1a. Agricultural Institute . . . . 628
4716. International Health Office 628
471c. International Labour Office . . ... 628
471d. Central Arms Office .... . .628
47 le. Central Liquor Office 629
VI. The International Court of Arbitration
472. Organisation of Court in general
473. The Permanent Council
474. The International Bureau .
475. The Court of Arbitration
476. The Deciding Tribunal
629
630
630
631
631
VII. The Proposed International Prize Court and the Proposed
International Cmirt of Justice
476a. The Proposed International Prize Court .... 634
4766. The Proposed International Court of Justice , . . 636
xl
CONTENTS OP
PART IV
INTERNATIONAL TRANSACTIONS
CHAPTER I
ON INTERNATIONAL TRANSACTIONS IN GENERAL
I. Negotiation
477. Conception of Negotiation .
478. Parties to Negotiation .
479. Purpose of Negotiation
480. Negotiations, by whom conducted
481. Form of Negotiation .
482. End and Effect of Negotiation .
PAGE
641
641
642
643
643
644
II. Congreaaes and Conferences
483. Conception of Congresses and Conferences
484. Parties to Congresses and Conferences
485. Procedure at Congresses and Conferences
64S
646
647
III. Transactions besides Negotiation
486. Different Kinds of Transaction
487. Declaration
488. Notification ....
489. Protest
490. Renunciation ....
648
649
649
650
651
CHAPTER II
TREATIES
I. Character and Function of Treaties
491. Conception of Treaties .
492. Different Kinds of Treaties ...
493. Binding Force of Treaties .
662
653
654
ll. Parties to Treaties
494. The Treaty-making Power . . .... 656
495. Treaty-making Power exercised by Heads of States or their
Governments ........ 657
496. Minor Functionaries exercising Treaty-maldng Power . 658
496a. Self-governing Dominions and Treaty-making Power . . 658
497. Constitutional Restrictions ....... 658
498. Mutual Consent of the Contracting Parties .... 659
499. Freedom of Action of Consenting Representatives . . 660
600. Delusion and Error in Contracting Parties .... 661
THE FIRST VOLUME
xli
III. Objects of Treaties
SECT. PAUK
601. Objects in general of Treaties . . . . . .661
502. Obligations of Contracting Parties only can be Object . . 662
503. An Obligation inconsistent with other Obligations cannot be
an Object 662
504. Object must be Physically Possible .... 662
505. Immoral Obligations ........ 662
506. Illegal Obligations 663
IV. Form and Parts of Treaties
507. No Necessary Form of Treaties ....
508. Acts, Conventions, Declarations, etc. ...
509. Parts of Treaties
V. Ratification of Treaties
510. Conception and Function of Ratification
511. iJationaZe for the Institution of Ratification .
512. Ratification regularly, but not absolutely, necessary
513. Length of Time for Ratification ....
514. Refusal of Ratification .....
515. Form of Ratification ......
516. Ratification, by whom effected ....
517. Ratification cannot be Partial and Conditional
518. Effect of Ratification
VI. Effect of Treaties
519. Effect of Treaties upon Contracting Parties .
520. Effect of Treaties upon the Subjects of the Parties
521. Effect of Changes in Government upon Treaties
622. Effect of Treaties upon Third States .
VII. Means of Securing Performance of Treaties
623. What Means have been in Use
524. Oaths
625. Hostages .
626. Pledge
527. Occupation of Territory
528. Guarantee
VIII. Participation of Third States in Treaties
529. Interest and Participation to be distinguished
530. Good Offices and Mediation ....
631. Intervention .......
532. Accession ........
533. Adhesion ........
663
664
666
667
668
669
670
671
672
673
674
676
677
677
678
678
681
681
682
682
682
683
683
684
684
684
685
IX. Expiration and Dissolution of Treaties
534. Expiration and Dissolution in contradistinction to Fulfilment . 686
535. Expiration through Expiration of Time .... 686
536. Expiration through Resolutive Condition .... 687
637. Mutual Consent 687
538. Withdrawal by Notice 687
539. Vital Change of Circumstances ...... 688
Xlii CONTENTS OF
X. Voidance of Treaties
SKCT.
540. Grounds of Voidance .....-■
541. Extinction of One of the Two Contracting Parties .
542. Impossibility of Execution ...■••
543. Realisation of Purpose of Treaty other than by Fulfilment
544. Extinction of such Object as was concerned in a Treaty
PaOE
694
694
694
695
695
XI. Cancellation of Treaties
545. Grounds of Cancellation . . . ■ • 695
546. Inconsistency with subsequent International Law . . . 695
547. Violation by one of the Contracting Parties .... 696
548. Subsequent Change of Status of One of the Contracting Parties . 697
549. War 698
XII. Renewal, Eeconjirmation, and EedintegratUm of Treaties
550. Renewal of Treaties . . ■ ■ 698
551. Reconfirmation . . ... 699
552. Redintegration ......... 699
XIII. Interpretation of Treaties
563. Authentic Interpretation, and the Compromise Clause 700
554. Rules of Interpretation which recommend themselves . 701
CHAPTER III
IMPORTANT GROUPS OF TREATIES
I. Important Law-making Treaties
566. Important Law-making Treaties a Product of the Nineteenth
Century .705
566. Final Act of the Vienna Congress ..... 706
557. Protocol of the Congress of Aix-la-Chapelle . . . 706
568. Treaty of London of 1831 . . .706
559. Declaration of Paris . . . 706
560. Geneva Convention . . . . 707
561. Treaty of London of 1867 . .707
562. Declaration of St. Petersburg ... . 708
663. Treaty of Berlin of 1878 708
564. Gieneral Act of the Congo Conference, and Convention of St.
Germain . ........ 708
665. Treaty of Constantinople of 1888 709
566. General Act of the Brussels Anti-Slavery Conference, and the
Conventions of St. Germain . . . . . .710
567. Two Declarations of the First Hague Peace Conference . . 711
668. Treaty of Washington of 1901 712
668a. Conventions and Declaration of Second Hague Peace Con-
ference ....... . 712
5686. The International Air Convention . . . . .716
568c. The Arms Trade Convention 716
THE FIRST VOLUME
xliii
II. The Treaties of Peace after the World War
SSCT. PAOE
568d. The Resettlement after the World War . . . .717
568e. The Treaty of Peace with Grermany . . . . .718
568/. The Treaty of Peace with Austria 725
568?. The Treaty of Peace with Bulgaria 727
568fe. Treaties with the Smaller Alhed Powers and the Protection of
Minorities ......... 727
568i. The International Labour Convention ..... 729
m. Alliances
569. Conception of Alliances
5696. Contingent Defence of France Treaties
570. Parties to Alliances ....
571. DiSerent Kinds of Alliances
572. Conditions of Alliances
573. Casus Ftederis ...
733
734
735
735
736
737
IV. Treaties of Quarantee and of Protection
574. Conception and Objects of Guarantee Treaties
575. Effect of Treaties of Guarantee ....
576. Effect of Collective Guarantee ....
576o. Pseudo-Guarantees ......
577. Treaties of Protection ......
738
739
740
741
743
V. Gom/meraial Treaties
578. Commercial Treaties in general ....
579. Meaning of Coasting-trade in Commercial Treaties .
580. Meaning of Most-favoured-nation Clause
744
745
749
VI. Unions concerning Common Non-Political Interests
581. Object of the Unions ....
5816. Position of Unions after the World War
582. Post and Telegraphs .
583. Transport and Communication
584. Copyright ....
585. Commerce and Industry
586. Agriculture
587. Welfare of Working Classes .
588. Weights, Measures, Coinage .
589. Official Publications .
590. Sanitation ....
691. Pharmacopceia .
591a. Opitim ....
592. Humanity and Public Morality
693. Preservation of Animal World
694. Private Intemational Law .
695. American Republics .
596. Science ....
751
752
754
755
757
758
760
761
762
763
763
765
765
766
768
768
769
770
INDEX
773
INTRODUCTION
FOUNDATION AKD DEVELOPMENT
OF THE LAW OF NATIONS
CHAPTER I
FOUNDATION OF THE LAW OF NATIONS
I
THE LAW OP NATIONS AS LAW
Hall, pp. 13-16 — Maine, pp. 50-53 — Lawrence, §§ 1-3, and Easayt, pp. 1-36 —
Phillimore, i. §§ 1-12— Twiss, i. §§ 104-105— Taylor, § 2— Moore, i. §§ 1-2
— Westlake, i. pp. 1-13, and Papers, pp. 392-413— Walker, History, i.
§§ 1-8— Halleok, i. pp. 50-59— Hershey, Nos. 1-10— UUmann, §§ 2-4
— Heffber, §§ 1-5 — Holtzendorff in HoUzendorff, i. pp. 19-26 — Nys, i.
pp. 138-151— Ririer, i. § 1— Bonfila, Nos. 26-31— Pradier-Fod6r^, i.
Nob. 1-23— M6rignhao, i. pp. 5-28— Martens, i. §§ 1-5— Fiore, i. Nos.
186-208, and Code, Nos. 1-31 — Bulmerinoq, Projois, Theorie wnd Codi-
fication des Volkerrechta (1874), pp. 158-164 — Higgins, The Binding Force
of International Law (1910) — Heilborn, Grundbegriffe des Volkerrechta
(1912), §§ 1-5 — GroBch, Der Zwang im Volkerrecht (1912), pp. 1-38,
109-137 — Bedslob, Das Problem des Volkerrechta (1917) — Lammasoh,
Das Volkerrecht nach dem Kriege (1917), pp. 61-91— Praag, Nos. 1-3 —
Pollock in the Law Quarterly Review, xviii. (1902), pp. 418-429 — Soott
in A.J., i. (1907), pp. 831-866 — Willoughby and Root in A.J., ii.
(1908), pp. 357-365 and 451-457 — Nys in A.J., vi. (1912), pp. 1-29,
279-315 — Munroe Smith, The Nature amd Future of International Law
in the Americam, Political Science Review, xjcii. (1918) — Foulke in
the Columbia Law Review, xix. (1919), pp. 429-466.
§ 1. Law of Nations or International Law (Droit des Conoep-
gens, Volkerrecht) is the name for the body of customary LawV "
and conventional rules which are considered legally ^ Nations.
binding by civiMsed States in their intercourse with
each other. Such part of these rules as is binding upon
all the civihsed States without exception, as, for in-
stance, the law connected with legation and treaties, is
GsXiodi universal International Law, in contradistinction
to 'particular International Law, which is binding on two
' In contradistinction to mere International Comity. See below,
usages and to rules of so-called §§ 9 and 19.
VOL, I. A
^ DUUJNJJAllUJN Ui!' XJUli; llAW uf NATIONS
or a few States only. But it is also necessary to distin-
^sh general International Law. This name must be
given to the body of such rules as are binding upon a
great ijiany States, including leading Powers. General
International Law, as, for instance, the Declaration of
Paris of 1856, has a tendency to become universal
International Law.
International Law in the meaning of the term as
used in modern times did not exist during antiquity
and the first part of the Middle Ages. It is in its origin
essentially a product of Christian civilisation, and began
gradually to grow from the second half of the Middle
Ages. But it owes its existence as a systematised body
of rules to the Dutch jurist and statesman Hugo Grotius,
whose work, De Jure Belli ac Pacis, Ubri in., appeared
in 1625, and became the foundation of all later
development.,
The Law of Nations is a law for the intercourse of
States with one another, not a law for individuals. As,
however, there cannot be a sovereign authority above
the several sovereign States, the Law of Nations is a law
between, not above,^ the several States, and is, therefore,
since Bentham, also called ' International Law.'
Since the distraction of Bentham between Inter-
national Law pubUc and private has been generally
accepted, it is necessary to emphasise that only the
so-called public International Law, which is identical
with the Law of Nations, is International Law, whereas
the so-called private International Law is not, at any
rate not yet. The latter concerns such matters as fall at
the same time under the jurisdiction of two or more
different States. And as the Municipal Laws of different
States are frequently in conflict with each other respect-
* The arguments used by Snow (see proposal to substitute for it the term
A.J., vi. (1912), pp. 890-900, and Sv^emcUionai Law, are based upon
iJ.G'.,xix. (1912), pp. 309-318) against the untenable dictum that 'all law
the term International Law, and his comes from above.'
THE LAW OF NATIONS AS LAW 3
ing such matters, jurists belonging to different countries
endeavour to find a body of principles according to which
such conflicts can be avoided. AVhat is now termed
private International Law would, however, become
International Law in case the Powers agreed by a law-
making treaty upon a body of rules the appHcation of
which would solve such conflicts.
§ 2. Almost from the beginning of the science of the Legal
Law of Nations the question has been discussed whether fheTawof
the rules of International Law are legally binding. Nations
Hobbes^ and Pufendorf^ had already answered the
question ia the negative. And during the nineteenth
century Austin ^ and his followers took up the same
attitude. They defined law as a body of rules for human
conduct set and enforced by a sovereign pohtical autho-
rity. If indeed this definition of law be correct, the
Law of Nations cannot be called law. For Inter-
national Law is a body of rules governing the relations
of sovereign States between one another. And there
is not and cannot be a sovereign pohtical authority
above the sovereign States which could enforce such
rules. However, this definition of law is not correct.
It covers only the written or statute law within a State,
that part of the Municipal Law which is expressly made
by statutes of Parhament in a constitutional State or
by some other sovereign authority in a non-constitu-
tional State. It does not cover that part of Municipal
Law which is termed unwritten or customary law.
There is, in fact, no community and no State in the
world which could exist with written law only. Every-
where there is customary law in existence besides the
written law. This customary law was never expressly
enacted by any law-giving body, or it would not be
' De Cine, xiv. 4.
• De Jwe Naturae et Gentium, ji, o. iii. § 22.
• Ltcturea on Jurisprudence, vi.
* HUVISUAILIUN UF TUJfi LAW OF NATIONS
merely customary law. Those who define law as rales
set and enforced by a sovereign political authority do
not deny the existence of customary law. But they
maintain that the customary law has the character of
law only through that indirect recognition on the part
of the State which is to be found in the fact that courts
of justice 9.pply the customary in the same way as the
written law, and that the State does not prevent them
from doing so. This is, however, nothing else than a
fiction. Courts of justice having no law-giving power
could not recognise unwritten rules as law if these
rules were not law before that recognition, and States
recognise unwritten rules as law only because courts of
justice do so.
Oharao- § 3. For the purpose of finding a correct definition
©'"Rules of law it is indispensable to compare morahty and law
of Law. ^j^jj gg^gjj^ other, for both lay down rules, and to a great
extent the same rules, for human conduct. Now the
characteristic of rules of morahty is that they apply to
conscience, and to conscience only. An act loses all
value before the tribunal of morahty, if it was not done
out of free will and conscientiousness, but was enforced
by some external power or was done from some con-
sideration which lies without the boundaries of con-
science. Thus, a man who gives money to the hospitals
in order that his name shall come before the pubHc
does not act morally, and his deed is not a moral one,
though it appears to be one outwardly. On the other
hand, the characteristic of rules of law is that they shall,
if necessary, be enforced by external power.i Rules
of law apply, of course, to conscience quite as much
as rules of morahty. But the latter require to be
enforced by the internal power of conscience only,
' Westlake, Paperi, p. 12, seems andTwiss, i. §105, tidoptsiteK/jresSM
to make the same distinotion be- verbis.
tween rules of law and of morality,
THE LAW OF NATIONS AS LAW 0
whereas the former require to be enforced by some
external power. "When, to give an illustrative example,
morahty commands you to pay your debts, it hopes
that your conscience will make you pay them. On the
other hand, if the law gives the same command, it
hopes that, if the conscience has not sufl5cient power to
make you pay your debts, the fact that, if you will not
pay, the baihfE will come into your house, will do so.^
§ 4. If these are the characteristic signs of morality Law-
and of law, we are justified in stating the principle : filthority
A rule is a rule of morahty, if by common consent of not easen-
. . ,.■'■'. , tialforthe
the community it apphes to conscience and to con- Existence
science only ; whereas, on the other hand, a rule is a °
rule of law, if by common consent of the community it
shall eventually be enforced by external power. With-
out some kind both of morahty and law, no community
has ever existed, or could possibly exist. But there
need not be, at least not among primitive communities,
a law-giving authority within a community. Just as
the rules of morahty are growing through the influence
of many different factors, so the law can grow without
being expressly laid down and set by a law-giving
authority. Wherever we have an opportunity of
observing a primitive community, we find that some
of its rules for human conduct apply to conscience
only, whereas others shall by common consent of the
community be enforced ; the former are rules of morahty
only, whereas the latter are rules of law. For the
existence of law neither a law-giving authority nor
courts of justice are essential. Whenever a question of
law arises in a primitive community, it is the com-
munity itself and not a court which decides it. Of
' This distinction between rules of Volherrechts (1912), pp. 3-10) who
law and of morality is, however, by deny to the rules of law the essen-
no means generally recognised, for tial characteristic that they shall, if
there are many writers (see, for in- necessary, be enforced by external
stance, Heilbom, Orwidbegriffe des power.
6 FOUNDATION OF THE LAW OF NATIONS
course, when a community is growing out of the primi-
tive condition of its existence and becomes gradixally
so enlarged that it turns into a State in the sense proper
of the term, the necessities of Hfe and altered circum-
stances of existence do not allow the commimity itself
any longer to do anything and everything. And the
law can now no longer be left entirely in the hands of
the different factors which make it grow gradually
from case to case. A law-giving authority is now just
as much wanted as a governing authority. It is for
this reason that we find in every State a Legislature,
which makes laws, and courts of justice, which ad-
minister them.
However, if we ask whence does the power of the
Legislature to make laws come, there is no other answer
than this : from the common consent of the community.
Thus, in Great Britain, ParUament is the law-making
body by common consent. An Act of ParUament is
law, because the common consent of Great Britain is
behind it. That ParUament has law-making authority
is law itself, but unwritten and customary law. Thus
the very important fact comes to light that all statute or
written law is based on unwritten, law in so far as the
power of Parliament to make statute law is given to
Parliament by un/written law. It is by the common
consent of the British people that Parhament has
the power of making rules which shall be enforced
by external power. But besides the statute laws
made by Parhament there exist and are constantly
growing other laws, unwritten or customary, which are
day by day recognised through courts of justice.
Definition § 5. On the basis of the results of these previous
EMentiaf investigations we are now able to give a definition of
Condi- law. We may say that law is a body of rules for human
tions 01 - -I.- . 7-T7
Law. condu<!t witmn a community which by common consent of
this community shall be enforced by external power.
THE LAW OF NATIONS AS LAW 7
The essential conditions of the existence of law are,
therefore, threefold. There must, first, be a community.
There must, secondly, be a body of rules for human
conduct within that community. • And there must,
thirdly, be a common consent of that community
that these rules shall be enforced by external power.
It is not an essential condition either that such rules
of conduct should be written rules, or that there should
be a law-making authority or a law-administeiing court
within the community concerned. And it is evident
that, if we find this definition of law correct, and accept
these three essential conditions of law, the existence of
law is not limited to the State community only, but is
to be found everywhere where there is a conmiunity.
The best example of the existence of law outside the
State is the law of the Roman Cathohc Church, the so-
called Canon Law. This Church is an organised com-
munity whose members are dispersed over the whole
surface of the earth. They consider themselves bound
by the rules of the Canon Law, although there is no
sovereign political authority that sets and enforces
those rules, the Pope and the bishops and priests being
a religious authority only. But there is an external
power through which the rules of the Canon Law are
enforced — ^namely, the punishments of the Canon Law,
such as excommunication, refusal of sacraments, and
the like. And the rules of the Canon Law are in this
way enforced by common consent of the whole Roman
Cathohc community.
§ 6. But it must be emphasised that, if there is law La^ pot
to be found in every community, law in this meaning tifiedwith
must not be identified with the law of States, the so- ^°'^''^
called Municipal Law,* just as the conception of State
' Thioaghoat this work the term in contradistinction to International
'Mnnicipal Law' is made use of in Law.
the sense of national or State law
o irUUJNDATlON OF THE LAW OF NATIONS
must not be identijaed with the conception of com-
munity. The conception of community is a wider one
than the conception of State. A State is a conamunity,
but not every community is a State. Likewise the
conception of law pure and simple is a wider one than
that of Mimicipal Law. Municipal Law is law, but not
every law is Municipal Law, as, for instance, the Canon
Law is not. Municipal Law is a narrower conception
than law pure and simple. The body of rules which
is called the Law of Nations or International Law might,
therefore, be law in the strict sense of the term, although
it might not possess the characteristics of Municipal
Law. To make sure whether the Law of Nations is or
is not law, we have to inquire whether the three essential
conditions of the existence of law are to be foimd in the
Law of Nations,
The § 7. As the first condition is the existence of a com-
oFn^-'^ munity, the question arises, whether an international
tiona' community exists whose law could be the Law of
munity. Nations. Befoie this question can be answered, the
conception of a conamunity must be defined. A com-
munity may be said to be the body of a number of
individuals more or less bound together through such
common interests as create a constant and manifold
intercourse between the single individuals. This defini-
tion of a community covers not only a community of
individual men, but also a community of individual
communities such as individual States. But is there
a universal international community of aU individual
States in existence ? This question had already, before
the World War, been decided in the aflarmative as far
as the States of the civiKsed world were concerned, Li-
numerable were the interests which then already knit
all the individual ciAdhsed States together and which
created constant intercourse between these States as well
as between their subjects. As the civihsed States were.
THE LAW OF NATIONS AS LAW 9
with only a few exceptions, Christian States, there were
abeady rehgious ideas winding a band around them.
There were, further, science and art, which are by their
nature to a great extent international, and which created
a constant exchange of ideas and opinions between the
subjects of the several States. Of the greatest import-
ance were, however, agriculture, industry, and trade.
It is impossible even for the largest empire to pro-
duce everything its subjects want. Therefore, the
productions of agriculture and industry must be ex-
changed by the several States, and it is for this reason
that international trade is an unequalled factor for the
welfare of every civiUsed State. Even in antiquity, when
every State tried to be a world in itself. States did not,
and could not, exist without some sort of international
trade. It is international trade which has created
navigation on the high seas and on the rivers flowing
through different States. It is, again, international
trade which has called into existence the nets of railways
which cover the continents, the international postal
and telegraphic arrangements, and the Transatlantic
telegraphic cables.^
The manifold interests which knit all the civilised
States together and create a constant intercourse
between one another, have long since brought about
the necessity that these States should have one or more
official representatives living abroad. Thus we find
everyvurhere foreign envoys and consuls. They are the
agents who make possible the current stream of trans-
actions between the Governments of the different
States. A number of International Offices, Inter-
national Bureaux, International Commissions have
been permanently appointed for the administration of
' See Pried, Das intemationaie and discussed which already before
Leben der Gegenwmrt (1908), where the World War knit the civilised
the innumerable interests are grouped States together.
10 FOUNBATION OF THE LAW OF NATIONS
intemational businesis, and a Permanent Court of Arbi-
tration has been established at the Hague. Though
the individual States are sovereign and independent
of each other, though there is no intemational Govern-
ment above the national ones, though there is no central
political authority to which the different States are
subjected, yet there is something mightier than aU the
powerful separating factors : namely, the common in-
terests. And these common interests and the necessary
intercourse which serves these interests, have long since
united the separate States into an indivisible community.
For many hundreds of years this community has been
called ' Family of Nations ' or ' Society of Nations.'
But while before the World War the Family of Nations
rested only on the basis of custom, and entirely lacked
any organisation whatever, the Treaties of Peace, by
estabUshing a League intended to comprise all civilised
States, turned the unorganised Family of Nations into
an organised community of States.
The § 8. Thus the first essential condition for the exist-
ofm-^ snce of law is a reahty. The single States make alto-
Commu- g®*^^^ ^ ^o'iy ^^ States, a community of individual
nitywith States. But the second condition cannot be denied
Oonduot. either. For hundreds of years more and more rules
have grown up for the conduct of the States between
each other. These rules are to a great extent customary
rules. But side by side with these customary and un-
written rules more and more written rules are daily
created by international agreements, such as the
Declaration of Paris of 1856, the Hague Rules con-
cerning land warfare of 1899 and 1907, and the like.
The so-called Law of Nations is nothing else than a
body of customary and conventional ^ rules regulating
the conduct of the individual States with each other.
' The term ' conventional rule ' is dioate a rule created by express
used throughout this work to in- agreement.
THE LAW OP NATIONS AS LAW 11
§ 9. But how do matters stand concerning the third External
essential condition for the existence of law ? Is there a thTEn-
conunon consent of the community of States that tte^°^^ement
rules of international conduct shall be enforced by interna-
external power ? There cannot be the slightest doubt conduct,
that this question must be afl&rmatively answered.
The heads of the civihsed States, their Governments,
their Parhaments, and the pubhc opinion of the whole of
civihsed humanity, agree and consent that the body
of rules for international conduct which is called the
Law of Nations shall, if necessary, be enforced by external
power, in contradistinction to rules of international
morahty and courtesy, which are left to the considera-
tion of the conscience of nations. In the absence of
a central authority for the enforcement of the rules of
the Law of Nations, the States have to take the law
into their own hands. Self-help and intervention on
the part of other States which sympathise with the
wronged one are the means by which the rules of the
Law of Nations can be and actually are enforced. And
by the estabhshment of the League of Nations there is
now more reason to hope than in former times that the
smaller and weaker States will not be at the mercy of the
larger and stronger Powers, in case of a conflict between
their interests. For, according to the Covenant of the
League of Nations, the League has been created, among
other purposes, for ' the firm establishment of the under-
standings of International Law as the actual rule of
conduct among Governments.' It is true that there
is no central Government above the Governments of the
several States, which could in every case secure the en-
forcement of the rules of International Law. For this
reason, compared with Municipal Law and the means
available for its enforcement, the Law of Nations is
certainly the weaker of the two. A law is the stronger,
the more guarantees are given that it can and will be
12 FOUNDATION OF THE LAW OP NATIONS
enforced. Thus, the law of a State which is governed
by an uncorrapt Glovemment and the courts of which
are not venal is stronger than the law of a State which
has a corrupt Giovemment and venal judges. It is
inevitable tl^t the Law of Nations must be a weaker
law than Municipal Law, as there is not, and cannot be,
an international Government above the national ones
which could enforce the rules of Litemational Law in
the same way as a national Giovemment enforces the
rules of its Municipal Law. This weakness becomes
particularly conspicuous in time of war, for belhgerents
who fight for their existence will always be apt to brush
aside such rules of the Law of Nations concerning war-
fare as are supposed to hinder them in the conduct of
their military operations. But a weak law is never-
theless still law, and the Law of Nations is by no means
so weak a law as it sometimes seems to be. Those who
deny to International Law the character of law because
ihey identify the conception of law in ^neral with that
of Municipal Law and because they cannot see any law
outside the State, confound cause and effect. Originally
law was not a product of the State, bnt the State was a
product of law. The right of the State to make law is
based upon the rule of law that the State is competent
to make law.
Practdoe § 10. The fact is that theorists only are divided con-
J^^^ceming the character of the Law of Nations as real
Nations as ja^, Jq practice International Law is constantly recog-
nised as law. The Governments and Parliaments of
the different States are of opinion that they are l^alfy,
as well as morally bound by the Law of Nations. Like-
wise, pubhc opinion of all civilised States considers every
State legally boim^d to comply with the rules of the Law
of Nations, not taking notice of the opinion of those
theorists who maintain that the Law of Nations does
not bear the character of real law. And the several
THE LAW OF NATIONS AS LAW 13
States not only recognise the rules of International
Law as legally binding in innumerable treaties, but
emphasise every day the fact that there is a law between
themselves. They moreover recognise this law by
their Municipal Laws ordering their officials, their civil
and criminal courts, and their subjects to take lip
such an attitude as is in conformity with the duties
imposed upon their sovereign by the Law of Nations.
If a violation of the Law of Nations occurs on the part
of an individual State, pubUc opinion of the civilised
world, as weU as the Governments of other States, stig-
matise such violation as a violation of law pure and
simple. And countless treaties concerning trade, navi-
gation, post, telegraph, copyright, extradition, and
many other objects exist between civiHsed States,
which treaties, resting entirely on the existence of a
law between the States, presuppose such a law, and
contribute by their very existence to its development
and growth.
Violations of this law are certainly frequent, especially
during war. But the offenders always try to prove that
their acts do not constitute a violation, and that they have
a right to act as they do according to the Law of Nations,
or at least that no rule of the Law of Nations is against
their acts. Has a State ever confessed that it was going
to break the Law of Nations or that it ever did so ?
The fact is that States, ia breaking the Law of Nations,
never deny its existence, but recognise its existence
through the endeavour to interpret the Law of Nations
in a way favourable to their act.^ And there is an
'Thus when, in August 1914, Ger- object of which was the diffusion
many began the World War by of asphyxiating gases. Again, when
attacking neutralised Belgium, she she ordered her submarines to tor-
pleaded the necessity of self-preser- pedo the Luiitania and thereby
vation as an excuse. When, in 1915, drowned over 1100 innocent men
she everywhere made use of poisonous women and children, she pleaded that
gases, she pleaded that the French the act was lawful as one of reprisaU.
had made use of projectiles, the sole
JL« JtUUJNJJAlMOJN UJf THifi LiAW OP NATIONS
ever-growing tendency to bring disputed questions of
International Law as well as international differences
in general before international courts and councils.
According to the Covenant of the League of Nations,
the members of the League are bound, if there should
arise between them a dispute hkely to lead to a rupture,
to submit the matter to arbitration, or to an inquiry
by the Council of the League, and in no case are they
allowed to go to war, until three months after the
award of the arbitrators or the report by the Council.
II
BASIS OF THE LAW OP NATIONS
Common § 11. If law is, as defined above (§ 5), a body of rules
tt°Br*is for human conduct within a community which by
of Law. common consent of this community shall be enforced
through external power, common consent is the basis
of all law. What, now, does the term ' common con-
sent ' mean 1 If it meant that all the individuals who
are members of a community must at every^ moment
of their existence expressly consent to every point of
law, such common consent would never be a fact. The
individuals, who are the members of a community, are
successively born into it, grow into it together with
the growth of their intellect during adolescence, and die
away successively to make room for others. The com-
munity remains unaltered, although a constant change
takes place in its members. ' Common consent ' can
therefore only mean the express or tacit consent of
such an overwhelming majority of the members that
those who dissent are of no importance whatever, and
disappear totally from the view of one who looks for the
will of the community as an entity in contradistinction
BASIS OF THE LAW OF NATIONS 15
to the wills of its single members. The question as to
whether there be such a common consent in a special
case, is not a question of theory, but of fact only. It
is a matter of observation and appreciation, and not of
logical and mathematical decision, just as is the well-
known question. How many grains make a heap ?
Those legal rules which come down from ancestors to
their descendants remain law so long as they are sup-
ported by the common consent of these descendants.
New rules can only become law if they find common
consent on the part of those who constitute the com-
munity at the time. It is for that reason that custom
is at the background of all law, whether written or
unwritten.
§ 12. What has been stated with regard to law pure Common
and simple applies also to the Law of Nations. How- ouhe"*
ever, the community for which this Law of Nations is Fanuiy of
authoritative consists not of individual human beings, the Basis
but of individual States. And whereas in communities national
consisting of individual human beings there is a constant Law.
and gradual change of the members through birth,
death, emigration, and immigration, the Family of
Nations is a community within which no such constant
change takes place, although now and then a member
disappears and a new member steps in. The members
of the Family of Nations are therefore not born into
that community and they do not grow into it. New
members are simply received into it through express or
tacit recognition. It is therefore necessary to scrutinise
more closely the common consent of the States which
is the basis of the Law of Nations.
The customary rules of this law have grown up by
common consent of the States — ^that is, the different
States have acted in such a manner as includes their
tacit consent to these rules. As far as the process of
the growth of a usage and its turning into a custom
16 FOUNDATION OF THE LAW OP NATIONS
can be traced back, customary rvdes of the Law of
Nations came into existence in the following way. The
intercourse of States with each other necessitated some
rules of international conduct. Single usages, there-
fore, gradually grew up, the different States acting in
the same or in a similar way when an occasion arose.
As some rules of international conduct were from the
end of the Middle Ages urgently wanted, the writers on
the Law of Nature prepared the ground for their growth
by constructing certain rules on the basis of religious,
moral, rational, and historical reflections. Hugo
Grotius' work, De Jure Belli ac Pads, libri Hi. (1625),
ofiered a systematised body of rules, which recom-
mended themselves so much to the needs and wants
of the time that they became the basis of the develop-
ment following. Without the conviction of the Govern-
ments and of pubUc opinion of the civilised States
that there ought to be legally binding rules for inter-
national conduct, on the one hand, and, on the other
hand, without the pressure exercised upon the States
by their interests and the necessity for the growth
of such rules, the latter would never have grown up.
When afterwards, especially in the nineteenth century,
it became apparent that customs and usages alone
were not sufl&cient, or not sufficiently clear, new rules
were created through law-making treaties being con-
cluded which laid down rules for future international
conduct. Thus conventional rules gradually grew up
side by side with customary rules.^
New States which came into existence and were
through express or tacit recognition admitted into the
Family of Nations thereby consented to the body of
rules for international conduct in force at the time of
' See the judgment in the case of national Law rests on the common
TheScotia, (1871)81 U.S. 170, where consent — express or implied — of the
the faot is clearly stated that Inter- several States.
BASIS OP THE LAW OP NATIONS 17
their admittance. It is therefore not necessary to prove
for every single rule of International Law that every
single member of the Family of Nations consented to
it. No single State can say on its admittance into the
Family of Nations that it desires to be subjected to
such and such a rule of International Law, and not to
others. The admittance includes the duty to submit
to aU the rules in force, with the sole exception of
those which, as, for instance, the rules of the Geneva
Convention, are specially stipulated for such States
only as have concluded, or later on acceded to, a
certain international treaty creating the rules con-
cerned.
On the other hand, no State which is a member of
the Family of Nations can at some time or another
declare that it will in future no longer submit to a
certain recognised rule of the Law of Nations. The
body of the rules of this law can be altered by common
consent only, not by a unilateral declaration on the
part of one State. This apphes not only to customary
rules, but also to such conventional rules as have been
called into existence through a law-making treaty for
the purpose of creating a permanent mode of future
international conduct without a right of the signatory
Powers to give notice of withdrawal. It would, for
instance, be a violation of International Law on the
part of a signatory Power of the Declaration of
Paris of 1856 to declare that it would cease to be
a party. But it must be emphasised that this does
not apply to such conventional rules as are stipulated
by a law-making treaty. which expressly reserves the
right to the signatory Powers to give notice of
withdrawal.
§ 13. Since the Law of Nations is based on the suSot? '
common consent of individual States, and not of indi- f ^'^o
vidual human beings, States solely and exclusively (apart Nations.
VOL. I. B
18 FOUNBATION OF THE LAW OP NATIONS
from the League of Nations ^) are the subjects of Inter-
national Law. This means that the Law of Nations is a
law for the international conduct of States, and not of
their citizens. Subjects of the rights and duties arising
from the Law of Nations are States solely and exclusively.
An individual human being, such as a king or an ambas-
sador for example, is never directly a subject of Inter-
national Law. Therefore, all rights which might neces-
sarily have to be granted to an individual human being
according to the Law of Nations are not international
rights, but rights granted by Municipal Law in accord-
ance with a duty imposed upon the State concerned by
International Law. Likewise, all duties which might
necessarily have to be imposed upon individual human
beings according to the Law of Nations are not inter-
national duties, but duties imposed by Municipal Law in
accordance with a right granted to, or a duty imposed
upon, the State concerned by International Law. Thus
the privileges of an ambassador are granted to him by
the Municipal Law of the State to which he is accredited,
but that State has the duty to grant these privil^es "
according to International Law. Thus, further, the
duties incumbent upon officials and subjects of neutral
States in time of war are imposed upon them by the
Municipal Law of their home States, but these States
have, according to International Law, the duty of
imposing such duties upon their officials and citizens.^
§ 14. Since the Law of Nations is based on the
common consent of States as sovereign communities,
' The Family of Nations being now work. See, for instance, below,
organised as the League of Nations, §§ 289, 344, 384. It should, how-
the latter is, of course, the subject ever, at once be mentioned that this
of rights as well as duties ; and these assertion is even nowadays still
rights and duties are international sometimes contradicted ; see, for in-
and not supernational. stance, Kaufmann, Die Rechtskfdfl
^ The importance of the fact that des intemcUioncUen Mechts (1899),
subjects of the Law of Nations are patsim; Rehm in Z.V., i. (1907),
States exclusively is so great that I p. 53 ; and Diena in B. O. , xvi.
consider it necessary to emphasise pp. 67-76.
it again and again throughout this
SOURCES OF THE LAW OF NATIONS 19
the member-States of the Family of Nations are equal Equality
to each other as subjects of International Law. States enoe"from
are by their nature certainly not equal as regards *j i„.g^^f
power, extent, constitution, and the like. But as national
members of the community of nations they are equals,
whatever differences between them may otherwise
exist. This is a consequence of their sovereignty, and
of the fact that the Law of Nations is a law between,
not above, the States.^
Ill
SOURCES OF THE LAW OF NATIONS
Hall, pp. 5-13— Maine, pp. 1-25— Lawrence, §§ 50-55— Phillimore, i. §§ 17-33
— Twiss, i. §§ 82-103 — Taylor, §§ 30-36 — Westlake, i. pp. 14-19 —
Wheaton, § 15 — Halleok, i. pp. 60-68 — Hershey, Nos. 11-15 —
UUmann, §§ 8-9 — Heflfter, § 3— Holtzendorff in HoUzindbrff, i. pp.
79-155— Heilborn, Gfrundbegriffe dee Volkerrechts (1912), §§ 6-9— Rivier,
i. § 2— Nys, i. pp. 152-173— Bonfils, Nos. 45-63— Despagnet, Nos. 58-63
— Pradier-Fod6r6, i. Nob. 24-35 — M^rignhao, i. pp. 79-113 — Martens,
i. § 43 — Fiore, i. Nos. 224-238 — Calvo, i. §§ 27-38 — Bergbohm,
Staattvertrdge vmd Oeietze ala Qudlen dea VdlJserrechti (1877) — Jellinek,
Die rechtliche Natur der Staatsvertrage (1880) — Cavaglieri, La Con-
nietvdine giwridica intemazionaU (1907) — Oppenheim in Z.I., xxv,
(1914), pp. 1-13— Praag, Nos. 7-15.
§ 15. The different writers on the Law of Nations source in
disagree widely with regard to kinds and numbers of j°^n*'.
sources of this law. The fact is that the term ' source *j°° *<>
of law ' is made use of in different meanings by the
different writers on International Law, as on law in
general. It seems to me that most writers confound
the conception of * source ' with that of ' cause,' and
through this mistake come to a standpoint from which
certain factors which influence the growth of Inter-
national Law appear as sources of rules of the Law of
' See below, §§ 115-116, where the be shown that n6t-full sovereign
legal equality of States in eontradis- States are not equals of full sovereign
tinction to their political inequality States.
is discussed, and where it will also
iJ\J JJUUiNUATlUJN K)£ IJlJJi U&S?} OP NATIONS
Nations. This mistake can be avoided by going back
to the meaning of the term ' source ' in general. Source
means a spring or well, and has to be defined as the
rising from the ground of a stream of water. When
we see a stream of water and want to know whence
it comes, we follow the stream upwards until we come
to the spot where it rises naturally from the ground.
On that spot, we say, is the source of the stream of
water. We know very well that this source is not
the cause of the existence of the stream of water.
Source signifies only the natural rising of water from a
certain spot on the ground, whatever natural causes
there may be for that rising. If we apply the con-
ception of source in this meaning to the term ' source
of law,' the confusion of source with cause cannot arise.
Just as we see streams of water running over the
surface of the earth, so we see, as it were, streams of
rules running over the area of law. And if we want to
know whence these rules come, we have to foUow these
streams upwards until we come to their beginning.
Where we find that such rules rise into existence, there
is the source of them. Of course, rules of law do not
rise from a spot on the ground as water does; they
rise from facts in the historical development of a com-
munity. Thus in Great Britain a good many rules
of law rise every year from Acts of Parhament. ' Source
of law ' is therefore the name for an historical fact
out of which rules of conduct rise into existence and
legal force.
The two § 16. As the basis of the Law of Nations is the common
Inter" °^ consent of the member-States of the Family of Nations,
national it is cvideut that there must exist, and can only exist,
as many sources of International Law as there are
facts through which such common consent can possibly
come into existence. Of such facts there are only
two. A State, just as an individual, may give its
SOURCES OF THE LAW OP NATIONS 21
consent either directly by an express declaration, or
tacitly by conduct which it would not foUow in case
it did not consent. The sources of International Law
are therefore twofold — namely : (1) express consent,
which is given when States conclude a treaty stipu-
lating certain rules for the future international conduct
of the parties ; (2) tacit consent, implicit consent or
consent by conduct, which is given through States having
adopted the custom of submitting to certain rules of
international conduct. Treaties and custom are, there-
fore, exclusively the sources of the Law of Nations.
§ 17. Custom is the older and the original source of Custom in
International Law in particular as weU as of law inaistiiw-
general. Custom must not be confounded with usage. ^°° ^
In everyday Ufe and language both terms are used
synonymously, but in the language of the international
jurist they have two distinctly different meanings. Inter-
national jurists speak of a custom when a clear and
continuous habit of doing certain actions has grown up
under the aegis of the conviction that these actions are,
according to International Law, obligatory or right.
On the other hand, international jurists speak of a
usage when a habit of doing certain actions has grown
up without there being the conviction that these actions
are, according to International Law, right or obligatory.
Thus the term * custom ' is in the language of inter-
national jurisprudence a narrower conception than the
term ' usage,' as a given course of conduct may be usual
without being customary. Certain conduct of States
concerning their international relations may therefore
be usual without being the outcome of customary ^
International Law.
' See Kliiber, § 3. It is very de- the distinction, although he names
plorable that the distinction between ' usage ' what really is ' custom,' and
custom and usage in International vice versa. See, for instance. Hall,
Law is very frequently not drawn by § 139, where he says ' this cuatom
many publicists. It would seem has since hardened into a definite
that Hall occasionally recognises mage,'
5S FOUNDATION OF THE LAW OF NATIONS
As iisages have a tendency to become custom, the
question presents itself, at what time a usage turns
into a custom. This question is one of fact, not of
theory. All that theory can point out is this : Where-
ever and as soon as a line of international conduct
frequently adopted by States is considered legally
ob%atory or legally right, the rule, which may be
abstracted from such conduct, is a rule of customary
International Law.
Treaties § 18. Treaties are the second source of International
of ^ter-^ Law, and a source which has of late become of the
national greatest importance. As treaties may be concluded for
imiimierable purposes,^ it is necessary to emphasise
that such treaties only are a source of International
Law as either stipulate new rules for future international
conduct or confirm, define, or abolish existing customary
or conventional rules. Such treaties must be called
law-making treaties. Since the Family of Nations is not
a State-like community, there is no central authority
which could make law for it in the way that Parlia-
ments make law by statutes within the States. The
only way in which International Law can be made by
a deliberate act, in contradistinction to custom, is that
the members of the Family of Nations conclude treaties
in which certain rules for their future conduct are
stipulated. Of course, such law-making treaties create
law for the contracting parties solely. Their law is
universal International Law only when all the members
of the Family of Nations are parties to them.
Many law-making treaties are concluded by a few
States only, so that the law which they create is par-
ticular International Law. On the other hand, many
law-making treaties have been concluded which con-
tain general International Law, because the majority
of States, including leading Powers, are parties to
^ See below, § 492.
SOURCES OF THE LAW OP NATIONS 23
them. General International Law has a tendency to
become universal because such States as hitherto did
not consent to it will in future either expressly give
their consent or recognise the rules concerned tacitly
through custom.^ But it must be emphasised that,
whereas custom is the original source of International
Law, treaties are a source the power of which derives
from custom. For the fact that treaties can stipulate
rules of international conduct at all is based on the
customary rule of the Law of Nations, that treaties are
binding upon the contracting parties.^
§ 19. Thus custom and treaties are the two exclusive Factors
sources of the Law of Nations. When writers on oing the
International Law frequently enumerate other sources ^!^^ °^
besides custom and treaties, they confound the term national
' source ' with that of ' cause ' by caUing sources of *^'
International Law such factors as influence the gradual
growth of new mles of International Law without,
however, being the historical facts from which these
rules receive their legal force. Important factors of
this kind are : Opinions of famous writers ^ on Inter-
national Law, decisions of prize courts, arbitral awards,*
instructions issued by the different States for the
guidance of their diplomatic and other organs, State
Papers concerning foreign pohtics, certain Municipal
Laws, decisions of municipal courts.^ All these and
other factors may influence the growth of International
Law either by creating usages which gradually turn
into custom, or by inducing the members of the Family
of Nations to conclude such treaties as stipulate legal
rules for future international conduct.
A factor of a special kind which also influences the
' Law-making treaties of world- * See Oppenheim in A.J., ii.
wide importanoe are enumerated (1908), pp. 341-344.
below, §§ 556-568C.
• See below, § 493. ' See Oppenheimin^. J., ii.(1908),
' See Oppenheim in A.J., ii. pp. 336-341, and Fraag, No. 10.
(1908), pp. 344-348, and Praag, No. 11.
„. .J NATIONS
growth of International Law is the so-called Comity
(Comitas Gentium, Convenance et Courtdsie Internationale,
Staatengunst). In their intercourse with one another,
States do observe not only legally binding rules and
such rules as have the character of usages, but also
rules of pohteness, convenience, and goodwill. Such
rules of international conduct are not rules of law, but
of comity. The Comity of Nations is certainly not a
source of International Law, as it is distinctly in
contrast to the Law of Nations. But there can be no
doubt that many a rule which formerly was a rule of
International Comity only is nowadays a rule of Inter-
national Law. And it is certainly to be expected that
this development wiU go on in future also, and that
thereby many a present rule of International Comity
will in future become one of International Law.^
Not to be confounded with the rules of comity are
the rules of morahty, which ought to apply to the
intercourse of States as much as to the intercourse of
individuals.
IV
EELATIONS BETWEEN INTERNATIONAL AND
MUNICIPAL LAW
Holtzendorff in HoUzendorff, i. pp. 49-53, 117-120 — Heilborn, Qrundhegriffe
dea Vollcerrechts (1912), § 17— Nys, i. pp. 194-199— Taylor, § 103—
Hershey, No. 10 — Holland, Stvdies, pp. 176-200 — Kaufmann, Die
Bechishraft des intemationalen Bechts (1899) — Triepel, VolkerrecM und
Landeirecht (1899) — Anzilotti, II Diritto mtemazionaZe nei Givdizi intemi
(1905)— Oppenheim, The Panama _ Oanal Conflict (1913), pp. 38-44 —
Piooiotto, The Relation of International Law to the Law of England and
the United States (1915) — Wright, The Enforcement of Intemaiiomil
' The matter is ably discussed in Orundbegriffe dea Viilkerrechts [1912),
Stoerk, Volkerrecht und Volker- pp. 107-110, and Praag, No. 24.
courtoiaie (1908). See also Heilborn,
INTEENATIONAL AND MUNICIPAL LAW 25
Law through Municipal Law in the United States (1916), and in A. J.,
xi. (1917), pp. 1-21— Praag, Nos. 17-22 and 276-281— Kohler in Z.V.,
ii. (1908), pp. 209-230 — Wilkinson in the Law Magazine and Review,
xl. (1914-1^), pp. 447-463.
§ 20. The Law of Nations and the Municipal Law Essential
of the several States are essentially different from each beween"^
other. They differ, first, as regards their sources. i°*?r-
Sources of Municipal Law are custom grown up within and Muni-
the boundaries of the State concerned and statutes '"^°' °'^'
enacted by the law-giving authority. Sources of Inter-
national Law are custom grown up within the Family
of Nations and law-making treaties concluded by the
members of that family.
The Law of Nations and Municipal Law differ,
secondly, regarding the relations they regulate. Muni-
cipal Law regulates relations between the individuals
under the sway of a State and the relations between
this State and those individuals. International Law,
on the other hand, regulates relations between the
member-States of the Family of Nations.
The Law of Nations and Municipal Law differ,
thirdly, with regard to the substance of their law :
whereas Municipal Law is a law of a sovereign over
individuals subjected to his sway, the Law of Nations
is a law not above, but between sovereign States, and
therefore a weaker law.^
§ 21. If the Law of Nations and Municipal Law Law of
differ as demonstrated, the Law of Nations can neither ^^er pV
as a body^or in parts be per se a part of Municipal'?^'?"-
Law. Just, as Municipal Law lacks the power of alter-
ing or creating rules of International Law, so the latter
lacks absolutely the power of altering or creating rules
of Municipal Law. If, according to the Municipal Law
of an individual State, the Law of Nations as a body
or in parts is considered to be the law of the land, this
* See above, § 9.
26 FOUNDATION OF THE LAW OF NATIONS
can only be so either by municipal custom or by statute,
and then the respective rules of the Law of Nations
have by adoption become at the same time rules of
Municipal Law. Wherever and whenever such total or
partial adoption has not taken place, municipal courts
cannot be considered to be bound by International
Law, because it has, f&r se, no power over municipal
courts.^ And if it happens that a rule of Municipal
Law is in indubitable conflict with a rule of the Law
of Nations, municipal courts must apply the former.
If, again, a rule of the Law of Nations regulates a
fact without conflicting with, but without expressly
or tacitly having been adopted by Municipal Law,
mimicipal courts cannot apply such rule of the
Law of Nations.
Law of § 21a. It is frequently maintained that the Law of
Nataons jq-^tions to its whole extent is part of the law of England
British and of the United States of America ; but this assertion
and
Ameri- is quite untenable if the facts are carefully taken iato
dpaiLaw.' consideration.
(1) As regards England,^ there is no doubt that all
such rules of customary International Law as are either
universally recognised or have at any rate received the
assent of this coimtry, and fiirther all law-making
international conventions ratified by this country,
are binding upon Enghsh courts, imless they be in
conflict with Enghsh statutory law. For English
' This ought to be generally reoog- in oases of conflict between Inter-
nised ; but, in fact, is not. There national and Municipal Law.
are a number of writers (see, for
instance, Pillet in R.G., v. (1898), ' See Blackstone, GommenJonej on
p. 87, note 1, and Kohler in Z.V., the Laws of England, iv. ch. 5;
ii. (1908), pp. 209 ff.) who consider Westlake, Paper), pp. 498-518; but
International Law to be more a chiefly Piociotto, op. cit., and Pyke
super-state than an inter-state law, in the Law Quarterly Beview, xxxii.
and who, therefore, consider Inter- (1916), pp. 144-167. See also the
national Law to be superior to Muni- case of The Wett Rand Central OM
cipal Law, According to their Mining Co. Ltd. v. Bex, [1905]
opinion, municipal courts are bound 2 K.B. 391. For the numerous
by rules of International Law even other oases see Piociotto, op. cit.
INTERNATIONAL AND MUNICIPAL LAW 27
statutory law is under all circumstances and condi-
tions binding upon English courts, even if in conflict
with International Law, - although in doubtful cases
there is a presumption that no overruling of Inter-
national Law is intended by an Act of Parhament. In
particular, the rules of International Prize Law — ^whether
conventional or customary rules — are binding upon
English prize courts, unless they be ia conflict with an
Act of Parliament. Orders in Council which are not
in conformity with International Prize Law are not
binding upon English prize courts unless they amount
to a mitigation of the Crown rights in favour of the
enemy or a neutral, or they order such reprisals as are
justified by the circumstances of the case and do not
entail upon neutrals a degree of unreasonable incon-
venience.^ However, the jurisdiction of an English
prize court does not embrace the whole region covered
by International Law, but is confined to taking cognis-
ance of, and adjudicating upon, certain matters (including
capture at sea) which in former times were enumerated
in the Royal Commission imder which the court was
constituted, and are now defined both by statute and
by the Royal Commission issued at the beginning of
a war.*
(2) As regards the United States of America,^ there
is no doubt that all such customary International Law
> The Zamora, [1916] P. 27, and op. cit., and in A.J., n. (1917),
[1916] 2 A.C. 77, 1 B. and C.P.C. pp. 1-21. The principal oases are
309, and 2 B. and C.P.C. 1 ; The The Nereide, (1815) 9 Cranch 388 ;
Alwina, 34 Times L.R. 199, 3 B. Unitai Slates v. Smith, (1820) 5
and C.P.C. 54 ; 7%« Stiastad, [1916] Wheaton 153 ; The ScUia, (1871) 14
P. 123, and [1919] A.C. 279; Th( Wallace 170 ; The Paquette Sabana,
Leonora, [1918] P. 182, and [1919] (1899) 175 United States 677. For
A.C. 974. other cases see Pieciotto, op. cit.,
* The Sudtnarh (No. 2), (1917) 33 pp. 111-120. As re^ids the rela-
Times L.R. 573, 2 B. and C.P.C. tion between International Law and
473. the Municipal Law of all the Ameri-
' See Taylor, § 103; Seott in .li../'., can Republics, see Moore and Wilson
i. (1907), pp. 852-866 ; Oppenheim, in the Proceedings of t*< American
The Pttfuuna Canal Canfiict (1913), Society of ItOaiuUiontd Law, ix.
pp. 40-42 ; but principaUy Pieciotto, (1916), pp. 11-30.
op. cit., pp. 109-124, and Wright,
28 FOUNDATION OP THE LAW OP NATIONS
as is universally recognised, or has at any rate received
the consent of the United States, and further all
law-maldng international conventions ratified by the
United States, are binding upon American courts, even
if in conflict with previous American statutory law ;
for according to the practice of the United States,
customary as well as conventional International Law
overrules previous Municipal Law, provided it does
not conflict with the Constitution ^ of the United States.
On the other hand, American statutory law is binding
upon the courts of the United States, even if ia conflict
with previous customary or conventional International
Law; for American statutory law overrules previous
International Law, although in doubtful cases there is a
presumption that no overruling of International Law
is intended by an Act of Congress.
Certain § 22. If municipal courts cannot apply imadopted
Municipal rules of the Laws of Nations, and must apply even such
Lawne- ^vIqs of Municipal Law as conflict with the Law of
oessitated ^_ . . . . _
or inter- Natious, it IS evident that the several States, in order
to fulfil their international obhgations, are compelled
to possess certaia rules, and are prevented from having
certain oth^er rules, as part of their Municipal Law. It
is not necessary to enumerate all the rules of Municipal
Law which a State must possess, and all those rules it
is prevented from having. It suffices to give some
illustrative examples. Thus, for instance, on the one
hand, the Municipal Law of every State is com-
pelled to possess rules granting the necessary privileges
to foreign diplomatic envoys, protecting the Ufe and
Hberty of foreign citizens residing on its territory,
threatening punishment for certain acts committed on
its territory in violation of a foreign State. On the
other hand, the Municipal Law of every State is pre-
vented by the Law of Nations from having rules, for
• In re Dillon ; see Wharton, i. p. 667, and Moore, v. p. 78.
INTERNATIONAL AND MUNICIPAL LAW 29
instance, conflicting with the freedom of the high seas,
or prohibiting the innocent passage of foreign merchant-
men through its maritime belt, or refusing justice to
foreign residents with regard to injuries committed
on its territory to their lives, Uberty, and property by
its own citizens. If a State does nevertheless possess
such rules of Municipal Law as it is prohibited from
having by the Law of Nations, or if it does not possess
such municipal rules as it is compelled to have by the
Law of Nations, it violates an international legal duty ;
but its courts ^ cannot by themselves alter the Municipal
Law to meet the requirements of the Law of Nations.
§ 23. However, although municipal courts must Presump-
apply Municipal Law even if conBicting with the Law a'g^nst
of Nations, there is a presumption against the existence Conflicts
of such a conflict. As the Law of Nations is based upon inter-
the common consent of the different States, it is improb- "nd Muni-
able that a civihsed State would intentionally enact a "ipaiLaw.
rule conflicting with the Law of Nations. A part of
Mimicipal Law, which ostensibly seems to conflict with
the Law of Nations, must, therefore, if possible, always be
so interpreted as essentially not containing such conflict.
§ 24. In case of a gap in the statutes of a civihsed Presump-
State regarding certain rules necessitated by the Law ExUtenoe
of Nations, such rules ought to be presumed by the °^ certain
courts to have been tacitly adopted by such Muni- Municipal
cipal Law. It may be taken for granted that a State ^"'^^'
which is a member of the Family of Nations does not
intentionally want its Municipal Law to be deficient in
such rules. If, for instance, the Municipal Law of a
State does not by a statute grant the necessary privi-
leges to diplomatic envoys, the courts ought to pre-
sume that such privileges are tacitly granted.
' This became quite apparent in the court had to apply British
the Moray Firth case {Mortensen v. Municipal Law,
Petere)—see below, § 192— in which
30 FOUNDATION OF THE LAW OF NATIONS
Presump- § 25. There is no doubt that a State need not make
Existence use of all the rights it has by the Law of Nations, and
Mu^fpai *^^*» consequently, every State can by its laws expressly
Ruieain renouuce the whole or partial use of such rights, pro-
formity vided always it is ready to fulfil such duties, if any.
Rights ^^ *^® connected with these rights. However, when no
granted g^ch renuuciation has taken place, municipal coiirts
Law of ought, in case the interests of justice demand it, to
Nations, presume that their sovereign has tacitly consented to
make use of such rights. If, for instance, the Muni-
cipal Law of a State does not by a statute extend its
jurisdiction over its maritime belt, its courts ought to
presume that, since by the Law of Nations the juris-
diction of a State does extend over its maritime belt,
their sovereign has tacitly consented to that wider
range of its jurisdiction.
A remarkable case illustrating this happened in this
country in 1876. The German vessel Franconia, while
passing through the British maritime belt within three
miles of Dover, neghgently ran into the British vessel
Straihdyde, and sank her. As a passenger on board the
latter was thereby drowned, the commander of the Fran-
conia, the German Keyn, was indicted at the Central
Criminal Court and found guilty of manslaughter.
The Court for Crown Cases Eeserved, however, to which
the Central Criminal Court referred the question of
jurisdiction, held by a majority of one judge that,
according to the law of the land, Enghsh courts had
no jurisdiction over crimes committed in the English
maritime belt. Keyn was therefore not punished.^
To provide for future cases of a like kind, Parhament
passed, in 1878, the Territorial Waters Jurisdiction Act.^
' R. V. Keyn, (1876) 2 Ex. D. 63. whether a littoral State has juris-
See Phillimore, i. § 1986 ; Maine, diction over foreign vessels that
pp. 39-45 ; Stephen, History of the merely pass through its maritime
Griminal Law ofJBnglwnd (1883), vol. belt,
ii. pp. 29-42. See also below, § 189, » 41 & 42 Vict. u. 73.
where the controversy is discussed
DOMINION OF THE LAW OP NATIONS 31
V
DOMINION OF THE LAW OF NATIONS
Lawrence, § 44— Phillimore, i. §§ 27-33— Twiss, i. § 62— Taylor, §§ 60-64—
Westlake, i. p. 40— Bluntsohli, §§ 1-16— Heffier, § 7— Holtzendorff in
HoUzendorff, i. pp. 13-18— Nys, i. pp. 121-137— Rivier, i. § 1— Bonfils,
Nos. 40-44— Despagnet, Noa. 51-53— Martens, i. § 41— Fiore, Code, Nos.
43-48— UUmann, § 10— Heilborn, Orundbegriffe des Volkerrechts (1912),
§§ 10-12^raag, Nos. 4-5— Nippold in Z.V., ii. (1908), pp. 441-443—
Cavaglieri in R.a., xviii. (1911), pp. 259-292.
§ 26. Dominion of the Law of Nations is the name Range of
given to the area within which International Law is of"^^ °°
apphcable — that is, those States between which Inter- national
^ ^ . , , iiaw con-
national Law finds vaUdity. The range of the dominion troversiai.
of the Law of Nations is controversial, two extreme
opinions concerning this dominion being opposed. Some
publicists 1 maintain that the dominion of the Law of
Nations extends as far as humanity itself, that every
State, whether Christian or non-Christian, civilised or
uncivihsed, is a subject of International Law. On the
other hand, several jurists ^ teach that the dominion of
the Law of Nations extends only as far as Christian
civihsation, and that Christian States only are subjects
of International Law. Neither of these opinions would
seem to be in conformity with the facts of the present
international Ufe and the basis of the Law of Nations.
There is no doubt that the Law of Nations is a product
of Christian civihsation. It originally arose between
the States of Christendom only, and for hundreds of
years was confined to these States. Between Christian
and Mohammedan nations a condition of perpetual
enmity prevailed in former centuries. And no con-
stant intercourse existed in former times between
Christian and Buddhistic States. But from about the
* See, for instance, Bluntsohli, § 8, and Fiore, Code, No. 43.
* See, for instance, Martens, § 41.
Oil isOUNDATION OP THE LAW OF NATIONS
beginning of the nineteenth century matters gradually
changed. A condition of perpetual enmity between
whole groups of nations exists no longer either in theory
or in practice. And although there is still a broad and
deep gulf between Christian civihsation and others,
many interests, which knit Christian States together,
knit hkewise some non-Christian and Christian States.
Three § 27. Thus the membership of the Family of Nations
Sons of ^^^ ^^ ^**® necessarily been increased, and the range of
Member- the dominion of the Law of Nations has extended
Family of bcyoud its original Hmits. This extension has taken
Nations. pia,ce in conformity with the basis of the Law of
Nations. As this basis is the common consent of the
civiHsed States, there are three conditions for the
admission of new members into the circle of the Fanuly
of Nations. A State to be admitted must, first, be a
civihsed State which is in constant intercourse with
members of the Family of Nations. Such State must,
secondly, expressly or tacitly consent to be bound for
its future international conduct by the rules of Liter-
national Law. And, thirdly, those States which have
hitherto formed the Family of Nations must^expressly
or tacitly consent to the reception of the new member.
The last two conditions are so obvious that they
need no comment. Regarding the first condition, how-
ever, it must be emphasised that not particularly
Christian civihsation, but civihsation of such kind only
is conditioned as to enable the State concerned and its
subjects to understand, and to act in conformity with,
the principles of the Law of Nations. These principles
cannot be apphed to a State which is not able to apply
them on its own part to other States. On the other
hand, they can well be apphed to a State which is able
and wilhng to apply them to other States, provided a
constant intercourse has grown up between it and other
States. The fact is that the Christian States have been
DOMINION OF THE LAW OF NATIONS 33
of late compelled by pressing circumstances to receive
several non-Christian States into the community of
States which are subjects of International Law.
§ 28. The present range of the dominion of Inter- Present
national Law is a product of historical development, Dominion
within which epochs are distinguishable, marked by ^a^^f
successive entrances of various States into the Family Nations.
of Nations.
(1) The old Christian States of Western Europe are
the original members of the Family of Nations, because
the Law of Nations grew up gradually between them
through custom and treaties. Whenever afterwards a
new Christian State made its appearance in Europe, it
was received into the charmed circle by the old members
of the Family of Nations. It is for this reason that
this law was in former times frequently called ' Euro-
pean Law of Nations.' But this name has nowadays
historical value only, as it has been changed into ' Law
of Nations,' or ' International Law ' pure and simple.
(2) The next group of States which entered into
the Family of Nations was the body of Christian States
which grew up outside Eiirope. All the American ^
States which arose out of colonies of European States
belong to this group. And it must be emphasised that
the United States of America have largely contributed
to the growth of the rules of International Law. The
two Christian Negro Republics of Liberia in West
Africa and of Haiti on the island of San Domingo
belong to this group.
' But it ought not to be main- Existence d'vm, Droit international
tained that there is — in contra- am^ricain {1912). Alvarez in iJ. C,
distinction to the European — an xx. (1913), pp. 48-52, somewhat
American International Law in ex- modifies his views ; but he still con-
istenoe ; see, however, Alvarez, Le siders the existence of an American
Droit imtemationcU a/miricain (1910), in contradistinction to a European
andagainAlvarezin JV.,iii. (1909), International Law to be possible,
pp. 269-353. The arguments of See also Heilborn, Orundbegriffe dea
Alvarez are refuted by Si Vianna in Vollcerrechts (1912), pp. 61-68.
his excellent work, De la Non-
VOL. I. ' C
iJ4 FOUNDATION OF THE LAW OF NATIONS
(3) With the reception of Turkey into the Family of
Nations International Law ceased to be a law between
Christian States solely. This reception took place
expressly through Article 7 of the Peace Treaty of Paris
of 1856, in which the five Great European Powers
of the time, namely, France, Austria, England, Prussia,
and Russia, and besides those Sardinia, the nucleus of
the future Great Power Italy, expressly ' declarent la
Sublime Porte admise a participer aux avantages du
droit pubhc et du concert europeens.' From that time
until the outbreak of the World War Turkey was invited
to send delegates to every general congress which took
place. But her position as a member of the Family of
Nations was anomalous, because her civilisation fell
short of that of the Western States. It was for that
reason that the so-called Capitulations ^ were still in force,
and that other anomahes stiU prevailed. The Treaty
of Peace between Turkey and the Allied Powers has
not yet been concluded, and it is impossible at present
to make any statement as to the position of Turicey
within the Family of Nations after the World War.
(4) Another non-Christian member of the Family of
Nations is Japan. A generation ago one might have
doubted whether Japan was a real and full member
of that family, but after the end of the nineteenth
century no doubt was any longer justified. Through
marvellous efforts, Japan has become not only a modem
State, but an influential Power. Since her war with
China in 1895, she must be considered one of the Great
Powers that lead the Family of Nations, and was
numbered among the five principal Alhed and Asso-
ciated Powers in the Treaties of Peace after the World
War.
' In September 1914, shortly act called forth immediate protests,
before she became a belligerent, and the question may be expected to
Turkey denounced the Capitulations be dealt with by the Treaty of Peace
(see ilV., viii. (1914), p. 873). This with Turkey.
DOMINION OF THE LAW OF NATIONS 35
(5) Before the World War the, position of such States
as Persia, Siam, China, Abyssinia, and the Hke, was
donbtful. These States were certainly civihsed States,
and AbyHHinia waw even a Christian State. However,
their ciAdUsation had not yet reached that condition
which was necessary to enable their Oovernments and
their population in every respect to understand, and
to carry out, the rules of International Law. On
the other hand, international intercourse had widely
arisen between these States and the States of the so-
called Western civihsation. Many treaties had been
concluded with them, and there was full diplomatic
intercourse between them and the Western States.
China, Persia, and Siam had even taken part in the
Hague Peace Conferences. All of them were making
efforts to educate their populations, to introduce modem
institutions, and thereby to raise their civihsation to the
level of that of the Western. But as yet they had not
accomphshed this task, and consequently they were not
yet able to be received into the Family of Nations as
full members. Although they were, as will be shown
below (§ 103), for some parts within the circle of the
Family of Nations, they remained for other parts out-
side. In the World War China and Siam took part on
the side of the Allied and Associated Powers, and were
represented at the Peace Conference at Paris. At the
conclusion of the World War, Persia, Siam, and China
became members of the League of Nations.^ Abyssinia
was not invited to accede to the Covenant of the League,
and its position would seem to be unchanged.
(6) It must be mentioned that a State of quite a
unique character, the former Congo Free State, "^ was,
after the BerUn Conference of 1884-1885, a member of
the Family of Nations. But it lost its membership in
1908, when it merged in Belgium by cession.
» Bee below, § 1676. ' See below, § 101.
OD FOUNDATION OF THE LAW OF NATIONS
(7) Changes have taken place in the membership of
the Family of Nations as a result of the World War,
Three new States — Poland, Czecho-Slovakia, and the
Hedjaz — have come into being. The former State of
Serbia has united with peoples hitherto subject to
Austria-Hungary to form the Serb-Croat-Slovene State.
The Austro-Hungarian Empire has ceased to exist, and
Austria and Hungary have become separate States. It
is at present doubtful whether Montenegro will con-
tinue to exist as an independent State ; the future
position of Albania is also unsettled.^
(8) As a result of the dissolution of the Russian
Empire further changes, still incomplete, are taking
place in the Family of Nations. Finland has secured
recognition as an independent State. Towards the
other States which have arisen amid the ruins of Russia
— Esthonia, Lithuania, and Latvia on the Baltic, and
Greorgia, Azerbaijan, and the Erivan Repubhc of Armenia
in Asia Minor — ^the Great Powers have so far adopted a
non-committal and provisional attitude. They have
recognised their Grovernments as de facto Grovernments of
autonomous territories (see §§ 71-75), but have so far
dechned to recognise them as independent States.^ The
vexed Russian question is stiU undecided, and the lead-
ing Powers have refused to have diplomatic relations
with the present Russian Grovernment.^
Treat- § 29. The Law of Nations, as a law between States
States" based on the common consent of the members of the
outside Family of Nations, naturally does not contain any rules
Family of concerning the intercourse with and treatment of such
States as are outside that circle. That this intercourse
and treatment ought to be regulated by the principles
of Christian moraUty is obvious. But actually a prac-
tice frequently prevails which is not only contrary to
Christian morality, but arbitrary and barbarous. Be
' This was the situation in May 1920, when this volume went to press.
CODIFICATION OP THE tAW OF NATIONS 37
that as it may, it is discretion, and not International
Law, according to which the members of the Family
of Nations deal with such Spates as still remain out-
side that family. But the United States of America
apply, as far as possible, the rulea of International Law
to their relations with the Red Indians.
VI
CODIFICATION OF THE LAW OF NATIONS
Holtzendorff in ffoltzendorff, i. pp. 136-151 — UUmann, § 11 — Despagnet,
Nos. 67-68— Bonfils, Nos. 1713-1727— M6rignhao, i. pp. 26-28— Nys, i.
pp. 174-193— Rivier, i. § 2— Fiore, i. Nob. 124-127— Martens, i. § 44—
Holland, Stwiies, pp. 79-95 — Bergbohm, Staatsvertrage und Geaetze all
Quellen dea VOlkerrechta (1877), pp. 44-77 — Bulmerinoq, Praxia, Theorie
und Codification des VSlkerrechti (1874), pp. 167-192 — Heilborn, Grundbe-
griffe des VSlherrechta (1912), § 16 — Alvarez, La Codification du Droit
international (1912), and in B.G., xx. (1913), pp. 24-52, 725-747—
Cavaloanti in S.G., xxi. (1914), pp. 183-204— Raszkowski in R.I., xxi.
(1889), pp. 521-531 — Proceedings of the American Society qf International
Law, iv. (1910), pp. 208-227 ; v. (1911), pp. 266-337 ; x. (1916), pp. 149-
167— Nys in A.J., v. (1911), pp. 871-900.
§ 30. The lack of precision which is natural to a Move-
large number of the rules of the Law of Nations on^voui"
account of its slow and gradual growth has created a "* 9°'^*^-
movement for its codification. The idea of a codifica-
tion of the Law of Nations in its totaHty arose at the
end of the eighteenth century. It was Bentham who
first suggested such a codification. He did not, how-
ever, propose codification of the existing positive Law
of Nations, but thought of a Utopian International Law
which could be the basis of an everlasting peace between
the civilised States. ^
Another Utopian project is due to the French Con-
vention, which resolved in 1792 to create a Declaration
' See Bentham's Works, ed. Bow- Quarterly Revieui, xi. (1885), pp.
ring, viii. p. 537 ; Nys in the Law 226-231.
ruui^jJAiXUJM UJ! ±nrj ujvw \jj:
NATIONS
of the Rights of Nations as a pendant to the Declara-
tion of the Rights of Mankind of 1789. For this pur-
pose the Abbe Gregoire was charged with the drafting
of such a declaration. In 1795 Abbe Gregoire pro-
duced a draft of twenty-one articles, which, however,
was rejected by the Convention, and the matter
dropped.^
It was not until 1861 that a real attempt was made
to show the possibihty of a codification. This was done
by an Austrian jurist, Alfons von Domin-Petruschevecz,
who pubUshed in that year at Leipzig a Precis d'un
Code de Droit international.
In 1863 Professor Francis Lieber, of the Columbia
College, New York, drafted the Laws of War in a body
of rules which the United States pubUshed during the
Civil War for the guidance of her army.^
In 1868 BluntschU, the celebrated Swiss interpreter
of the Law of Nations, pubUshed Das moderne Yolr
kerrecht der civilisirten Staaten als Rechtsbuch darge-
stellt. This draft code has been translated iuto the
French, Greek, Spanish, and Russian languages, and
the Chinese Government produced an official Chinese
translation as a guide for Chinese officials.
In 1872 the great ItaUan poUtician and jurist Mancini
raised his voice in favour of codification of the Law
of Nations in his able essay, Vocazione del nostra Secolo
per la Riforma e Codificazione del Diritto delle Genii.
Likewise in 1872 appeared at New York David
Dudley Field's Draft Outlines of an International
Code.
In 1873 the Institute of International Law was
founded at Ghent in Belgium.^ This association of
' See Rivier, i. p. 40, where the ' In 1912 the American Institute
full text of these twenty-one articles of International Law was founded
is given. They do not contain a real at Washington as a pendant of the
code, but certain principles only. Institute of International Law.
» See below, vol. ii. § 68 (4).
CODIFICATION OF THE LAW OF NATIONS 39
jiirists of all nations meets periodically, and has pro-
duced a number of drafts concerning various parts of
International Law, and, in particular, a Draft Code of
the Law of War on Land (1880), and a Draft Code of
Maritime Warfare (1913).
Likewise in 1873 was founded the Association for
the Reform and Codification of the Law of Nations,
which also meets periodically and which styles itself
now the International Law Association.
In 1874 the Emperor Alexander n. of Russia took
the initiative in assembling an iaternational conference
at Brussels for the purpose of discussing a draft code
of the Law of Nations concerning land warfare. At
this conference jurists, diplomatists, and mihtary men
were united as delegates of the invited States, and they
agreed upon a body of sixty articles which goes under
the name of the Declaration of Brussels. But the
Powers have never ratified these articles.
In 1880 the Institute of International Law pub-
lished its Manuel des Lois de la Gverre sur Terre.
In 1887 Leone Levi published his Internaiional Law
with Materials for a Code of International Law.
In 1890 the ItaUan jurist Kore published his II Diritto
intertiazionak oodificato e la sua Sanzio)ie giuridica, of
which a fifth edition appeared in 1915. A French trans-
lation of the fourth edition appeared in 1911, and an
English translation of the fifth edition appeared in 1916.
In 1906 E. Duplessix published his La Loi des Nations.
Prqjet d' Institution d'une Autorite nutionale, legislative,
administrative, judiciaire. Prqjet de Code de Droit inter-
national piMic.
In 1906 the Third Pan-American Conference «^reed
to establish an International Commission of Jurists
for the purpose of preparing draft codes of Public as well
as Private International Law.^
» See A.J., Ti. (1912), pp. 931-935.
„. <f OP NATIONS
In 1911 Jerome Internoscia published his New Code
of International Law in Enghsh, French, and ItaUan.
In 1911 Epitacio Pessoa published his Prqjecto de
Codigo de Direito internacional publico.^
In 1913 the Institute of International Law pubhshed
its Manuel de la Guerre maritime.
Work of § 31. At the end of the nineteenth century, in 1899,
Hagu^* the so-called Peace Conference at the Hague, convened
Confer- °^ ^^® personal initiative of the Emperor Nicholas ii.
enoe. of Kussia, showed the possibiHty that parts of the
Law of Nations might well be codified. Apart from
three declarations of minor value, and the convention
c'oncerning the adaptation of the Geneva Conven-
tion to naval warfare, this conference succeeded ia
producing two important conventions which may well
be called codes — namely, first, the ' Convention for the
Pacific Settlement of International Disputes,' and,
secondly, the ' Convention with respect to the Laws
and Customs of War on Land.' The first-named con-
vention is of great practical importance, as the Per-
manent Court of Arbitration has in a number of cases
successfully given its award. Nor can the great prac-
tical value of the second-named convention be denied.
Although the latter contains, even in the amended form
given to it by the second Hague Peace Conference of
1907, many gaps, which must be filled by the cus-
tomary Law of Nations, and although it is not a master-
piece of codification, it represents a model, the very
existence of which teaches that codification of parts of
the Law of Nations is practicable, provided the Powers
are inchned to come to an understanding. The first
Hague Peace Conference therefore made an epoch in
the history of International Law.
§ 32. Shortly after the Hague Peace Conference of
1899, the United States of America took a step with
' See Alvarez, La Codification du Droit international, p. 276 n.
COBIFICATION OF THE LAW OF NATIONS 41
regard to sea warfare similar to that taken by her in Work of
1863 with regard to land warfare. She pubhshed ongetond
June 27, 1900, a body of rules for the use of her navy^^^
under the title. The Laws and Usages of War at Sea — ^the Conf er-
so-called United States Naval War Code — ^which was the Naval
drafted by Captain Charles H. Stockton, of the United Co^^«^7
States Navy. London.
Although, on February 4, 1904, this code was by
authority of the President of the United States with-
drawn, it provided the starting-point of a movement
for codification of maritime International Law. No
complete Naval War Code agreed upon by the Powers
has as yet made its appearance, but the second Hague
Peace Conference of 1907 produced not less than thirteen
conventions, some of which are codifications of parts of
maritime law. Three of the thirteen conventions,
namely, that for the pacific settlement of international
disputes, that concemitig the laws and customs of war
on land, and that concerning the adaptation of the
principles of the Geneva Convention to maritime war,
take the place of three corresponding conventions of
the first Hague Peace Conference. But the other ten
conventions were entirely new, and concern : the hmita-
tion of the employment of force for the recovery of
contract debts, the opening of hostilities, the rights and
duties of neutral Powers and persons in war on land, the
status of enemy merchant ships at the outbreak of
hostUities, the conversion of merchant ships into war
ships, the laying of automatic submarine contact mines,
bombardments by naval forces in time of war, restric-
tions on the exercise of the right of capture in maritime
war, the establishment of an International Prize Court,
and the rights and duties of neutral Powers in maritime
war.
To make the establishment of the proposed Inter-
national Prize Court possible, a Naval Conference met
42 FOUNDATION OP THE LAW OF NATIONS
in London in November 1908, sat till February' 1909,
and produced the Declaration of London. Its nine
chapters deal with : blockade, contraband, unneutral
service, destruction of neutral prizes, transfer to a
neutral flag, enemy character, convoy, resistance to
search, compensation. The Declaration of London
has, however, not been ratified, and, in consequence,
the Hague Convention concerning the estabUshment of
an International Prize Court also remains unratified.
Value of § 33. In spite of the movement in favour of codi-
tion of* fication of the Law of Nations, there are many eminent
^^^- J jurists who oppose such codification. They argue that
Law con- codtfication would never be possible on account of
differences of languages and of technical juridical terms.
They assert that codification would cut ofE the organic
growth and future development of International Law.
They postulate the existence of a permanent inter-
national court with power of executing its verdicts as
an indispensable condition, since without such a court
no uniform interpretation of controversial parts of a
code could be possible. Lastly, they maintain that
the Law of Nations is not yet, and will not be
for a long time to come, ripe for codification. Those
jurists, on the other hand, who are in favour of codi-
fication argue that the customary Law of Nations to a
great extent lacks precision and certainty, that writers
on International Law difEer in many points regarding
its rules, and that, consequently, there is no broad and
certain basis for the practice of the States to stand upon.
Merits of § 34. I am decidedly not a blind and enthusiastic
tion in* admirer of codification in general. It cannot be main-
general, tained that codification is everywhere, at aU times,
and under aU circumstances opportune. Codification
certainly interferes with the so-called organic growth of
the law through usage into custom. It is true that
a law, once codified, cannot so easily adapt itself to
CODIFICATION OF THE LAW OF NATIONS 43
the individual merits of particular cases which come
under it. It is further a fact, which cannot be denied,
that together with codification there frequently enters
into courts of justice, and into the area of juridical
literature, a hair-spHtting tendency, and an interpreta-
tion of the law, which often clings more to the letter
and the word of the law than to its spirit and its
principles. And it is not at all a fact that codification
does away with controversies altogether. Codification
certainly clears up many questions of law which have
been hitherto debatable, but it creates at the same time
new controversies. And, lastly, all jurists know very
well that the art of legislation is still ia its infancy and
not at aU highly developed. The hands of legislators
are very often clumsy, and legislation often does more
harm than good. Yet, on the other hand, the fact
must be recognised that history has given its verdict
ia favour of codification. There is no civilised State
in existence whose Municipal Law is not to a greater
or lesser extent codified. The growth of the law through
custom goes on very slowly and gradually, very often
too slowly to be able to meet the demands of the
interests at stake. New interests and new inventions
very often spring up with which customary law cannot
deal. Circumstances and conditions frequently change
so suddenly that the ends of justice are not met by
the existing customary law of a State. Thus, legisla-
tion, which is, of course, always partial codification,
becomes a necessity, in the face of which all hesitation
and scruple must vanish. Whatever may be the
disadvantages of codification, there comes a time in
the development of every civihsed State when it can
no longer be avoided. And great are the advantages of
codification, especially of a codification that embraces a
large part of the law. Many controversies are done away
with. The science of law receives a fresh stimulus.
44 FOUNDATION OP THE LAW OF NATIONS
A more uniform spirit enters into the law of the country.
New conditions and circumstances of hfe becomelegally
recognised. Mortifying principles and branches are
cut off with one stroke. A great deal of fresh and
healthy blood is brought into the arteries of the body
of the law in its totaUty. If codification is carefully
planned and prepared, if it is imbued with true and
healthy conservatism, many disadvantages can be
avoided. And interpretation on the part of good
judges can deal with many a fault that codification has
made. If the worst comes to the worst, there is always
a ParHament or other law-giving authority of the
land to mend by further legislation the faults of
previous codification.
Merita of § 35. But do these arguments in favour of codifica-
tion of tion in general also apply to codification of the Law of
national Natious ? I havc uo doubt that they do more or less.
Law. If some of these arguments have no force in view of
the special circumstances of the existence of Inter-
national Law and of the peculiarities of the Family of
Nations, there are other arguments which take their
place.
When opponents maintain that codification would
never be practicable on account of differences of lan-
guage and of technical juridical terms, I answer that
this diflGiculty is only as great an obstacle in the way
of codification as it is in the way of contracting inter-
national treaties. The fact that such treaties are con-
cluded every day shows that difficulties which arise out
of differences of language and of technical juridical
terms are not at all insuperable.
Of more weight than this is the next argument of
opponents, that codification of the Law of Nations
would cut off its organic growth and future develop-
ment. It cannot be denied that codification always
interferes with the growth of customary law, although
CODIFICATION OP THE LAW OP NATIONS - 45
the assertion is not justified that codification mts
off such growth. But this disadvantage can be met
by periodical revisions of the code, and by its gradual
enlargement and improvement through enactment of
additional and amending rules according to the wants
and needs of the days to come.
When opponents postulate an international court
with power of executing its verdicts as an indispen-
sable condition of codification, I answer that the non-
existence of such a court is quite as much (or as httle)
an argument against codification as it is against the very
existence of International Law. If there is a Law of
Nations in existence in spite of the non-existence of
an international court to guarantee its reahsation, I
cannot see why the non-existence of such a court
should be an obstacle to codifying the very same Law
of Nations. It may indeed be maintained that codifi-
cation is all the more necessary as such an international
court does not exist. For codification of the Law of
Nations and the solemn recognition of a code by a
universal law-making international treaty would give
more precision, certainty, and weight to the rules of
the Law of Nations than they have now in their un-
written condition. And a uniform interpretation of a
code is now, since the first Hague Peace Conference
instituted a Permanent Court of Arbitration, and since
the Covenant of the League of Nations contemplates
the estabhshment of a Permanent International Court
of Justice, much more reahsable than in former times,
although these courts will never have the power of
executing their verdicts.
But is the Law of Nations ripe for codification ? I
readily admit that there are certain parts of that law
which would offer the greatest difficulty, and which
therefore had better remain untouched for the present.
But there are other parts, and I think that they con-
*U J5UUJNUAT10JS OJ!' TUB LAW OF NATIONS
stitute the greater portion of the Law of Nations,
which are certainly ripe for codification. There can
be no doubt that, whatever can be said against codifi-
cation of the whole of the Law of Nations, partial
codification is possible and comparatively easy. The
work done by the Institute of International Law, and
pubhshed in the Annuaire de VInstitut de Droit inter-
national, gives evidence of it. And the number and
importance of the law-maldng treaties produced by
the Hague Peace Conferences and the Naval Conference
of London, 1908-1909 (though the latter have not been
ratified), should leave no doubt as to the feasibiUty of
such partial codification.
How § 36. However, although possible, codification could
cation hardly be reahsed at once. The difificulties, though not
could be insuperable, are so great that it would take the work of
perhaps a generation of able jurists to prepare draft
codes for those parts of International Law which may be
considered ripe for codification. The only way in which
such draft codes could be prepared consists in the
appoiutment on the part of the Powers of an inter-
national committee composed of a sufficient number
of able jurists, whose task would be the preparation
of the drafts. PubHc opinion of the whole civilised
world would, I am sure, watch the work of these men
with the greatest interest, and the Parliaments of the
civihsed States would gladly vote the comparatively
small sums of money necessary for the costs of the
work. But id proposing codification it is necessary to
emphasise that it does not necessarily involve a re-
construction of the present international order and a
recasting of the whole system of International Law as
it at present stands. Naturally, a codification would
in many poiats mean not only an addition to the rules
at present recognised, but also the repeal, alteration,
and reconstruction of some of these rules. Yet, how-
CODIFICATION OF THE LAW OF NATIONS 47
ever this may be, I do not believe that a codification
ought to be, or could be undertaken which would revolu-
tionise the present international order and put the
whole system of International Law on a new basis. The
codification which I have in view is one that would
embody the existing rules of International Law together
with such modifications and additions as are necessi-
tated by the conditions of the age and the very fact
of codification being taken in hand. If International
Law, as at present recognised, is once codified, nothing
prevents reformers from making proposals which could
be realised by successive codifications.
CHAPTER II
DEVELOPMENT AND SCIENCE OF THE LAW OF
NATIONS
I
DEVELOPMENT OF THE LAW OP NATIONS
BEFORE GROTIUS
Lawrence, §§ 13-22— Manning, pp. 8-21— Halleck, i. pp. 1-11— Walker,
History, i. pp. 30-137— Taylor, §§ 6-29— Hershey, Nos. 16-53— UUmann,
§§ 12-14— Holtzendorff in HoUzendorff, i. pp. 159-386— Nys, i. pp. 1-22
—Martens, i. §§ 8-20— Fiore, i. Nos. 3-31— Calvo, i. pp. 1-32— Bonfils,
Nos. 71-86 — Despagnet, Nos. 1-19 — M6rignhac, i. pp. 38-43 — Lanrent,
Histoire du Droit des Gens, etc., 14 vols. (2nd ed. 1861-1868)— Ward,
3nquiry into the Foundation and History of the Law of Nations, 2 vols.
(1795) — Osenbriiggen, De Jure Belli et Pacis Romanorum (1836)— Miiller-
Joehmus, Geschichte des Volkerrechts im Alterthum (1848) — Hosack,
Rise and Growth of the Law of Nations (1882), pp. 1-226 — Nys, I/e Droit
de la Guerre et les Pricursturs de Grotius (1882), and Let Origines du
Droit international (1894) — Hill, History of Diplomacy in the Inter-
national Development of Europe, vol. i. (1905), and vol. ii. (1906) —
Cybiehowski, Das antiJce VolkerrecU (1907) — PMUipson, The Inter-
national Law and Oustom of Ancient Greece and Rome, 2 vols. (1910) —
Strupp, Urkunden zur Geschichte des Volkerrechts, 2 vols. (1911) —
Raeder, L'Arhitrage international chez les Hellenes (1912) — Conner,
The Devdopmeni of Belligerent Occupation (1912) — Tod, Intemational
Arbitration amongst the Greeks (1913) — Hershey in A.J., v. (1911), pp.
901-933— Audinet in iJ.(?., xxi. (1914), pp. 29-63.
No Law of § 37. International Law as a law between sove-
^yquity" reign and equal States based on the common consent
of these States is a product of mpdern Christian civilisa-
tion, and may be said to be about four hundred years
old. However, the roots of this law go very far back
into history. Such roots are to be found in the rules
and usages which were observed by the different nations
of antiquity with regard to their external relations.
IS
LAW OF NATIONS BEFOEE GEOTIUS 49
But it is well known that the conception of a Family
of Nations did not arise in the mental horizon of the
ancient world. Each nation had its own rehgion and
gods, its own language, law, and morahty. International
interests of sufficient vigour to wind a band around all
the civihsed States, bring them nearer to each other,
and knit them together into a community of nations,
did not spring up in antiquity. On the other hand,
however, no nation could avoid coming into contact
with other nations. War was waged and peace con-
cluded. Treaties were agreed upon. Occasionally
ambassadors were sent and received. International
arbitration was resorted to. International trade sprang
up. Pohtical partisans whose cause was lost often fled
their country and took refuge in another. And, just
as in our days, criminals often fled their country for
the purpose of escaping punishment.
Such more or less frequent and constant contact of
different nations with one another could not exist
without giving rise to certain fairly congruent rules
and usages to be observed with regard to external
relations. These rules and usages were considered
under the protection of the gods ; their violation called
for rehgious expiation. It will be of interest to throw
a glance at the respective rules and usages of the Jews,
Greeks, and Romans.
§ 38. Although they were monotheists and the stan- The Jews.
dard of their ethics was consequently much higher than
that of their heathen neighbours, the Jews did not in
fact raise the standard of the international relations
of their time except so far as they afforded foreigners
hving on Jewish territory equality before the law.
Proud of their monotheism and despising all other
nations on account of their polytheism, they found it
totally impossible to recognise other nations as equals.
If we compare the different parts of the Bible con-
VOL. I. D
OV DEVELOPMENT OF THE LAW OF NATIONS
ceming the relations of the Jews with other nationB,
we are struck by the fact that the Jews were sworn
enemies of some foreign nations, as the Amalekites,
for example, with whom they declined to have any
relations whatever in peace. When they went to
war with those nations, their practice was extremely
cruel. They killed not only the warriors on the battle-
field, but also the aged, the women, and the children
in their homes. Read, for example, the short descrip-
tion of the war of the Jews against the Amalekites in
1 Samuel xv., where we are told that Samuel instructed
King Saul as follows : (v. 3) ' Now go and smite Amafek,
and utterly destroy all that they have, and spare them
not ; but slay both man and woman, infant and suck-
ling, ox and sheep, camel and ass.' King Saul obeyed
the injiTQction, save that he spared the life of Agag,
the Amalekite king, and some of the finest animals.
Then we are told that the prophet Samuel rebuked
Saul and ' hewed Agag in pieces ' with his own hand.
Or again, in 2 Samuel xii. 31, we find that King David,
' the man after God's own heart,' after the conquest
of the town of Kabbah, belonging to the Ammonites,
' brought forth the people that were therein, and put
them under saws, and under harrows of iron, and undra:
axes of iron, and made them pass through the brick-
kiln. . . .'
With those nations, however, of which they were
not sworn enemies the Jews used to have intemataonal
relations. Ambassadors were considered sacrosanct,
and treaties were faithfully observed. And when they
went to war with those nations, their practice was in
no way exceptionally cruel, if looked upon from the
standpoint of their time and surroundings. Thus we
find in Deuteronomy xx. 10-14 the following rules : —
(v. 10). ' When thou comest nigh unto a city to ^tt
against it, then proclaim peace unto it.
LAAV OP NATIONS BEFORE GROTIUS 51
(v. 11) ' And it shall be, if it make thee answer of
peace, and open unto thee, then it shall be, that all the
people that is found therein shall be tributaries unto
thee, and they shall serve thee.
(v. 12) ' And if it will make no peace with thee, but
will make war against thee, then thou shalt besiege it :
(v. 13) ' And when the Lord thy God hath delivered
it into thine hands, thou shalt smite every male thereof
with the edge of the sword :
(v. 14) ' But the women, and the little ones, and the
cattle, and all that is in the city, even all the spoil
thereof, shalt thou take unto thyself ; and thou shalt
eat the spoil of thine enemies, which, the Lord thy God
hath given thee/
Comparatively mild, hke these rules for warfare,
were the Jewish rules regarding their foreign slaves.
Such slaves were not without legal protection. The
master who killed a slave was punished (Exodus xxi.
20) ; if the master struck his slave so severely that
he lost an eye or a tooth, the slave became a free man
(Exodus xxi. 26 and 27). The Jews, further, allowed
foreigners to live among them under the full protection
of their laws. ' Love . . . the stranger, for ye were
strangers in the land of Egj^t,' says Deuteronomy x.
19, and in Leviticus xxiv. 22 there is the command :
* Ye shall have one manner of law, as well for the
stranger, as for one of your own country.'
Of the greatest importance, however, for the Inter-
national Law of the future, are the Messianic ideals
and hopes of the Jews, as these Messianic ideals and
hopes are not national only, but fully intem&tion&l.
The following are the beautiful words in which the
prophet Isaiah (ii. 2-4) foretells the state of mankind
when the Messiah shall have appeared :
'(v. 2) ' And it shall come to pass in the last days,
that the mountain of the Lord's house shall be estab-
52 DEVELOPMENT OF THE LAW OF NATIONS
lished in the top of the mountains, and shall be exalted
above the hills ; and all nations shall flow unto it,
(v. 3) ' And many people shall" go and say, Come ye,
and let us go up to the mountain of the Lord, to the
house of the God of Jacob ; and he will teach us of his
ways, and we will walk in his paths ; for out of Zion
shall go forth the law, and the word of the Lord from
Jerusalem.
(v. 4) ' And he shall judge among the nations, and
shall rebuke many people : and they shall beat their
swords into plowshares, and their spears into pruning-
hooks : nation shall not Hft up sword against nation,
neither shall they learn war any more/
Thus we see that the Jews, at least at the time of
Isaiah, had a foreboding and presentiment of a future
when all the nations of the world should be united in
peace. And the Jews have given this ideal to the
Christian world. It is the same ideal which has in
bygone times inspired all those eminent men who have
laboured to build up an International Law. And it is
again the same ideal which nowadays inspires all lovers
of international peace. Although the Jewish State and
the Jews as a nation have practically done nothing to
realise that ideal, yet it sprang up among them and
has never disappeared.
The § 39. Totally different from this Jewish contribution
Greeks. ^^ ^ future International Law is that of the Greeks.
The broad and deep gulf between their civihsation and
that of their neighbours necessarily made them look
down upon those neighbours as barbarians, and thus
prevented them from raising the standard of their
relations with neighbouring nations above the average
level of antiquity. But the Greeks before the Mace-
donian conquest were never united into one powerful
national State. They Hved in numerous more or less
small city States, which were totally independent of
LAW OP NATIONS BEFORE GROTIUS 53
one another. It is this very fact which, as time went
on, called into existence a kind of International Law
between these independent States. They could never
forget that their inhabitants were of the same race. The
same blood, the same reUgion, and the same civilisation
of their citizens united these independent and — as we
should say nowadays — sovereign States into a com-
munity of States which in time of peace and war held
themselves bound to observe certain rules as regards the
relations between one another. The consequence was
that international arbitration ^ was frequently resorted
to, and that the practice of the Greeks in their wars
among themselves was a very mild one. It was a rule
that war should never be commenced without a declara-
tion of war. Heralds were inviolable. Warriors who
died on the battlefield were entitled to burial. If a
city was captured, the hves of all those who took refuge
in a temple had to be spared. War prisoners could be
exchanged or ransomed; their lot was, at the utmost,
slavery. Certain places, as, for example, the temple of
the god Apollo at Delphi, were permanently inviolable.
Even certain persons in the armies of the belHgerents
were considered inviolable, as, for instance, the priests,
who carried the holy fire, and the seers.
Thus the Greeks left to history the example that
independent and sovereign States can Uve, and are
in reahty compelled to five, in a community which
provides a law for the international relations of the
member-States, provided that there exist some common
interests and aims which bind these States together.
It is very often maintained that this kind of International
Law of the Greek States could in no way be compared
with our modem International Law, as the Greeks did
not consider their international rules as legally, but
as rehgiously binding only. We must, however, not
' See Raeder, U Arbitrage imternationai chez lea HdUnee (1912).
Romans.
54 DEVELOPMENT OF THE LAW OP NATIONS
forget that the Greeks never made the same distinction
between law, religion, and morality which the modem
world makes. The fact itself remains unshaken that
the Greek States set an example to the future that
independent States can live in a community in which
their international relations are governed by certain
rules and customs based on the common consent of the
members of that community.
The § 40. Totally different again from the Greek con-
tribution to a future International Law is that of the
Romans. As far back as their history goes, the Romans
had a special set of twenty priests, the so-caWed fetiales,
for the management of functions regarding their rela-
tions with foreign nations. In fulfilhng their functions
the fetiales did not apply a purely secular, but a divine
and holy law, a jiis sacrale, the so-called jus fetiale.
The fetiales were employed when war was declared
or peace was made, when treaties of friendship or
of alUance were concluded, when the Romans had
an international claim before a foreign State, or vice
versa.
According to Roman Law the relations of the Romans
with a foreign State depended upon the fact whether
or not there existed a treaty of friendship between
Rome and that State. In case no such treaty was
in existence, persons or goods coming from the
foreign land into the land of the Romans, and hkewise
persons and goods going from the land of the Romans
into the foreign land, enjoyed no legal protection what-
ever. Such persons could be made slaves, and such
goods could be seized, and became the property of the
captor. Should such an enslaved person ever come
back to his country, he was at once considered a free
man again according to the so-called jiis postliminii.
An exception was made as regards ambassadors. They
were always considered inviolable, and whoever violated
LAW OF NATIONS BEFORE GROTIUS 55
them was handed over to the home State of those
ambassadors to be punished according to discretion.
Different were the relations when a treaty of friend-
ship existed. Persons and goods coming from one
country into the other stood then under legal protec-
tion. So many foreigners came in the process of time
to Rome that a whole system of law sprang up regard-
ing these foreigners and their relations with Roman
citizens, the so-called jits gentium in contradistinction
to the jus civile. And a special magistrate, the praetor
peregrinus, was nominated for the administration of
that law. Of such treaties with foreign nations there
were three different kinds, namely, of friendship [ami-
citia), of hospitality (hospitium), or of alliance (foedus).
I do not propose to go into details about them. It
suffices to remark that, although the treaties were con-
cluded without any such provision, notice of termina-
tion could be given. Very often these treaties used
to contain a provision according to which future contro-
versies could be settled by arbitration of the so-called
recupeiratores.
Very precise legal rules existed as regards war and
peace. Roman law considered war a legal institution.
There were four different just reasons for war, namely :
(1) violation of the Roman dominion ; (2) violation of
ambassadors ; (3) violation of treaties ; (4) support
given during war to an opponent by a hitherto friendly
State. But even in such cases war was only justified
if satisfaction was not given by the foreign State.
Four fetiales used to be sent as ambassadors to the
foreign State from which satisfaction was asked. If such
satisfaction was refused, war was formally declared by
one of the fetiales throwing a lance from the Roman
frontier into the foreign land. For warfare itself no
legal rules existed, but discretion only, and there are
examples enough of great cruelty on the part of the
56 DEVELOPMENT OF THE LAW OF NATIONS
Komans. Legal rules existed, however, for the end of
war. War could be ended, first, through a treaty of
peace, which was then always a treaty of friendship.
War could, secondly, be ended by surrender (deditio).
Such surrender spared the enemy their hves and pro-
perty. War could, thirdly and lastly, be ended through
conquest of the enemy's country (occupatio). It was in
this case that the Eomans could act according to dis-
cretion with the hves and the property of the enemy.
From this sketch of their rules concerning external
relations, it becomes apparent that the Romans gave
to the future the example of a State with l^al rules
for its foreign relations. As the legal people pa/r excel-
lence, the Romans could not leave their international
relations without legal treatment. And though this
legal treatment can in no way be compared to modern
International Law, yet it constitutes a contribution
to the Law of Nations of the future, in so far as its
example furnished many arguments to those to whose
eferts we owe the very existence of our modem Law
of Nations.
No Need § 41. The Roman Empire gradually absorbed nearly
of Nations ^^^ whole civiUsed ancient world, so far as it was known
Mddf ^''^ to the Romans. They hardly knew of any independent
Ages. civihsed States outside the borders of their Empire.
There was, therefore, neither room nor need for an
International Law as long as this Empire existed. It
is true that at the borders of this World Empire there
were always wars, but these wars gave opportunity for
the practice of a few rules and usages only. And
matters did not change when under Constantine the
Great (306-337) the Christian faith became the rehgion
of the Empire and Byzantium its capital instead of
Rome, and, further, when in 395 the Roman Empire
was divided into the Eastern and the Western Empires.
This Western Empire disappeared in 476, when Romidus
LAW OP NATIONS BEPOEE GR0TIU8 57
Augustulus, the last emperor, was deposed by Odoacer,
the leader of the Germanic soldiers, who made himself
ruler in Italy. The land of the extinct Western Roman
Empire came into the hands of different peoples, chiefly
of Germanic extraction. In GalKa the kingdom of the
Franks springs up in 486 under Chlodovech the Mero-
viagian. In Italy the Idngdom of the Ostrogoths
under Theoderic the Great, who defeated Odoacer,
rises in 493. In Spain the kingdom of the Visigoths
appears in 456. The Vandals had, as early as in 429,
erected a kingdom ia Africa, with Carthage as its
capital. The Saxons had already gained a footing in
Britannia in 449.
All these peoples were barbarians in the strict sense
of the term. Although they had adopted Christianity,
it took hundreds of years to raise them to the standard
of a more advanced civiHsation. And, hkewise, hundreds
of years passed before different nations came to hght
out of the amalgamation of the various peoples that
had conquered the old Roman Empire with the residuum
of the population of that Empire. It was in the eighth
century that matters became more settled. Charle-
magne built up his vast Frankish Empire, and was,
in 800, crowned Roman Emperor by Pope Leo iii.
Again phe whole world seemed to be one empire, headed
by the Emperor as its temporal, and by the Pope as
its spiritual master, and for an International Law
there was therefore no room and no need. But the
Frankish Empire did not last long. According to
the Treaty of Verdun, it was, in 843, divided into three
parts, and with that division the process of development
set in, which led gradually to the rise of the several
States of Europe.
In theory the Emperor of the Germans remained for
hundreds of years to come the master of the world;
but in practice he was not even master at home, as the
58 DEVELOPMENT OP THE LAW OP NATIONS
German Princes, step by step, succeeded in establishing
their independence. And although, theoretically, the
world was well looked after by the Emperor as its
temporal and the Pope as its spiritual head, there were
constantly treachery, quarrelling, and fighting going on.
War practice was the most cruel possible. It is true
that the Pope and the Bishops succeeded sometimes in
mitigating such practice, but as a rule there was no
influence of the Christian teaching visible.
The § 42. The necessity for a Law of Nations did not
and s^x*. ^'^^se Until a multitude of States absolutely independent
teenth pf one auother had successfully established themselves.
That process of development, starting from the Treaty
of Verdun of 843, reached its chmax with the reign of
Frederic iii., Emperor of the Germans from 1440 to
1493. He was the last of the Emperors crowned in
Kome by the hands of the Popes. At that time Europe
was, in fact, divided up into a great number of inde-
pendent States, and thenceforth a law was needed to
deal with the international relations of these sovereign
States. Seven factors of importance prepared the ground
for the growth of principles of a future International Law.
(1) There were, first, the Civilians and the Canonists.
Roman Law was, in the beginning of the twelfth century,
brought back to the West through Irnerius, who taught
this law at Bologna. He and the other glossatores aad
post-glossatores considered Roman Law the ratio scripta^
the law par excellence. These Civihans maintained
that Roman Law was the law of the civiUsed world ipso
facto through the Emperors of the Germans being the
successors of the Emperors of Rome. Their commen-
taries to the Corpus Juris Civilis touch upon many
questions of the future International Law, which they
discuss from the basis of Roman Law.
The Canonists, on the other hand, whose influence
was unshaken till the time of the Reformation, treated
LAW OF NATIONS BEFORE GEOTIUS 59
from a moral and ecclesiastical point of view many
questions of the future International Law concerning
war.^
(2) There were, secondly, collections of maritime
law of great importance which made their appearance
in connection with international trade. From the
eighth century the world trade, which had totally dis-
appeared in consequence of the downfall of the Roman
Empire and the destruction of the old civihsation
during the period of the Migration of the Peoples, began
slowly to develop again. The sea trade specially
flourished, and fostered the growth of rules and customs
of maritime law, which were collected into codes, and
gained some kind of international recognition. The
more important of these collections are the following :
The Gonsolato del Mare, a private collection made at
Barcelona in Spain in the middle of the fourteenth
century ; ^ the Laws of Oleron, a collection, made in the
twelfth century, of decisions given by the maritime
court of Oleron in France ; the Rhodian Laws, a very
old collection of maritime laws which probably was put
together between the seventh and the ninth centuries ; ^
the Tabula Amalfitana, the maritime laws of the town
of Amalfi in Italy, which date at latest from the tenth
century ; the Leges Wisbuenses, a collection of mari-
time laws of Wisby on the island of Gothland, in Sweden,
dating from the fourteenth century.
The growth of international trade caused also the
rise of the controversy regarding the freedom of the
high seas (see below, § 248), which indirectly influ-
enced the growth of an International Law (see below,
§§ 248-250).
(3) A third factor was the numerous leagues of
^ See Holland, Stvdiea, pp. 40- let anciens Jwiscoruultes espagnols
58 ; Walker, HUtcn-y, i. pp. 204- (1914), pp. 125-138.
212. * See Ashburner, The Rhodian Sea
' See Nys, Le Droit de Oens et Law (1909), Introduction, p. oxii.
60 DEVELOPMENT OP THE LAW OF NATIONS
trading towns for the protection of their trade and
trading citizens. The most celebrated of these leagues
was the Hanseatic, formed in the thirteenth century.
These leagues stipulated for arbitration on controversies
between their member-towns. They acquired trading
privileges in foreign States. They even waged war,
when necessary, for the protection of their interests.
(4) A fourth factor was the growing custom on the
part of the States of sending and receiving permanent
legations. In the Middle Ages the Pope alone had a
permanent legation at the court of the Frankish kings.
Later, the ItaKan KepubUcs, as Venice and Florence for
instance, were the first States to send out ambassadors,
who took up their residence for several years in the
capitals of the States to which they were sent. At last,
from the end of the fifteenth century, it became a uni-
versal custom for the kings of the different States to
keep permanent legations at one another's capital.
The consequence was that an uninterrupted oppor-
tunity was given for discussing and dehberating upon
common international interests. And since the posi-
tion of ambassadors in foreign countries had to be
taken into consideration, international rules concern-
ing inviolabihty and exterritoriahty of foreign envoys
gradually grew up.
(5) A fifth factor was the custom of the great States
of keeping standing armies, a custom which also dates
from the fifteenth century. The imiform and stern
discipHne in these armies favoured the rise of more
universal rules and practices of warfare.
(6) A sixth factor was the Eenaissance and the
Reformation. The Renaissance of science and art in
the fifteenth century, together with the resurrection of
the knowledge of antiquity, revived the philosophical
and sesthetical ideals of Greek Hfe, and transferred
them to modern hfe. Through their influence the
LAW OF NATIONS BEFORE GROTIUS 61
spirit of the Christian religion took precedence of its
letter. The conviction awoke everjnvhere that the
principles of Christianity ought to unite the Christian
world more than they had done hitherto, and that
these principles ought to be observed in matters inter-
national as much as in matters national. The Kefor-
mation, on the other hand, put an end to the spiritual
mastership of the Pope over the civihsed world.
Protestant States could not recognise the claim of
the Pope to arbitrate as of right in their conflicts
either between one another or between themselves
and Cathohc States.
(7) A seventh factor made its appearance in con-
nection with the schemes for the estabhshment of eternal
peace which arose from the beginning of the fourteenth
century. Although these schemes were Utopian, they
nevertheless must have had great influence by impress-
ing upon the princes and the nations of Christendom
the necessity for some kind of organisation of the
numerous independent States into a community. The
first of these schemes was that of the French lawyer,
Pierre Dubois, who, as early as 1305, in De Recupera-
tione Terre Sanete, proposed an alUance between all
Christian Powers for the purpose of the maintenance of
peace and the estabHshment of a Permanent Courb of
Arbitration for the settlement of differences between
the members of the alliance.^ Another project arose in
1461, when Podiebrad, King of Bohemia from 1420 to
1471, adopted the scheme of his Chancellor, Antoine
Marini, and negotiated with foreign courts the founda-
tion of a Federal State to consist of all the existing
Christian States with a permanent Congress, seated at
Basle, of ambassadors of all the member-States as the
' See Meyer, Die ttaats- vmd 28-30 ; Vesnitoh, Deux Pricwteure
volJcerrechilichen Ideen von Pierre frcmfais du Pacifikme, etc. (1911),
Dvbois (1908) ; Sohiioking, Die pp. 1-29 ; Zeok, Der PubUzist Pierre.
Organiiation der Welt (1909), pp. Diiboii (1911).
62
DEVELOPMENT OF THE LAW OP NATIONS
highest organ of the Federation.^ A third plan was
that of Sully, adopted by Henri iv. of France, which
proposed, in 1603, the division of Europe into fifteen
States and the linking together of these into a Federation
with a General Council as its highest organ, consisting
of Commissioners deputed by the member-States.^ A
fourth project was that of fimeric Cruce, who, in 1623,
proposed the estabUshment of a Union consisting not
only of the Christian States, but of all States then exist-
ing in the whole of the world, with a General Council
as its highest organ, seated at Venice, and consisting
of ambassadors of all the member-States of the Union.*
* See Sohwitzky, Der europaeisclie
Fwritenbund George von Podmbrad
(1907), and Sohuoking, Die Organisa-
tion der Welt (190S), pp. 32-36.
' See KiikeUiaus, I>er Ursprung
des Planes vom ewigen Frieden in
den Memovren des Hertzogs von Svlly
(1893) ; Nys, Mtvdes de Droit inter-
national et de Droit politique (1896),
pp. 301-306, and Darby, IntemationaX
Tribunals (4th ed. 1904), pp. 10-21.
' See Baloh, Le Nouveau Cynde
de ^Jmeric Crucd (1909) ; Darby,
International Tribunals (4th ed.
1914), pp. 22-33; Veanitah, Deux
Prieurseurt fran(;aii du Pacijiame,
etc. (1911), pp. 29-54;
The schemes enumerated in the
text are those which were advanced
before the appearance of Grotius'
work, De Jure Belli ac Pacis (1625).
The numerous plans which made
their appearance afterwards — that of
the Landgrave of Hesse-Rheinfels,
1666 ; of Charles, Duke of Lorraine,
1688; of WiUiam Penn, 1693; of
John Sellers, 1710 ; of the Abb6 de
St. Pierre (1658-1743); of Kant,
1795 ; and of others — are for the
most part discussed in Schiicking,
Die Organisation der jreft(1909); in
Darby, International Tribunals (4th
ed. 1904); inLorimer, ii, pp. 216-239,
who himself develops a scheme (pp.
240-299) ; and in Ter Meulen, Der
Oedanke der intemationaZen Organi-
sation in seiner EntwicHung, 1300-
1800 (1917). See on the scheme of
Cardinal Alberoni (1736), Vesnitch,
Le Cardinal Alberoni Pacifiste (1912),
and in A.J., vii. (1913), pp. 51-107;
see on the scheme of the Abb6 de St.
Pierre, Bomer, Ueberdas Weltstaats-
projekt des Abb4 de Saint-Pierre
(1913). They are as Utopian as the
pre-Grotian schemes, but they are
nevertheless of great importance.
They preached again and again the
gospel of the organisation of the
Family of Nations, and although
their ideal has not been and can
never be realised, they drew the
attention of public opinion to the
fact that the international relations
of States should not be based on
arbitrariness and anarchy, but on
rules of law and comity. And
thereby they have indirectly influ-
enced the gradual growth of rules
of law for these international rela-
tions. The outbreak of the World
War in 1914 caused the appearance
of numerous further plans for the
establishment of eternal peace.
LAW OF NATIONS AFTER GROTIUS 63
II
DEVELOPMENT OF THE LAW OF NATIONS
AFTER GROTIUS
Lawrence, §§ 22-33, and Emayt, pp. 147-190— Halleok, i. pp. 14-49— Walker,
History, i. pp. 138-202— Taylor, §§ 65-95— Hershey, Nob. 62-85— Nys,
i. pp. 23-50— Martens, i. §§ 21-33— Fiore, i. Nos. 32-52— Calvo, i. pp.
32-101— Bonfils, Nos. 87-146— Despagnet, Nos. 20-27— M^rignhao, i.
pp. 43-79 — UUmann, §§ 16-17 — Laurent, Histoire du Droit des Gens,
etc., 14 vols. (2nd ed. 1861-1868) — Wheaton, Histoire des Progr^ du
Droit des Gens en Europe (1841) — Bulmerinoq, Die Systematik des VSl-
kerrechts (1858) — Pierantoni, Storia del Diritto intemazionoUe nel Secolo
xix. (1876) — Hosaok, Rise and Growth of the Law of Nations (1882), •
pp. 227-319^Brie, Die Fortachritte des Volkerrechts seit dem Wiener
Congress (1890) — Gareis, Die Fortschritte des internationalen Rechts im
letzten Memchencdter (1905) — Dupuis, Le Principe d'Equilibre et le Concert
evropien de la Paix de WestphaZie ct I'Acte d'Algdsiras (1909) — Strupp,
Urhanden zmr Geschichte des Volkerrechts, 2 vols. (1911) — Conner, The
Developmemt of Belligerent Occupation, (1912) — Hill, History of Diplomacy
in the International Development of Europe, vol. iii. (1914) — Muir,
Nationalism amd I'ntematiomalism (1916) — Phillimore, Three Centuries
of Treaties of Peace and their Teaching (\9\1), pp. 13-111 — Hershey in
A. J., vi. (1912), pp. 30-67.
§ 43. The seventeenth century found a multitude of The
independent States established and crowded on theQj"y„g
comparatively small continent of Europe. Many in-
terests and aims knitted these States together into a
community of States. International lawlessness was
henceforth an impossibility. This was the reason for
the fact that Grotius' work, De Jure Belli ac Pacis,
libri iii., which appeared in 1625, won the ear of the
different States, their rulers, and their writers on matters
international. Since a Law of Nations was now a
necessity, since many principles of such a law were
already more or less recognised and appeared again
among the doctrines of Grotius, since the system of
Grotius supphed a legal basis to most of those inter-
national relations which were at the time considered
as wanting such basis, the book of Grotius obtained
64 DEVELOPMENT OF THE LAW OF NATIONS
such a world-wide influence that he is correctly styled
the 'Father of the Law of Nations.' It would be
very misleading, and in no way congruent with the
facts of history, to beUeve that Grotius' doctrines
were as a body at once universally accepted. No such
thing happened, nor could have happened. What did
soon take place was that, whenever an international
question of legal importance arose, Grotius' book was
consulted, and its authority was so overwhelming that
in many cases its rules were considered right. How
those rules of Grotius, which have more or less quickly
been recognised by the common consent of the writers
on International Law, have gradually received similar
acceptance at the hands of th6 Family of Nations, is
a process of development which in each single phase
cannot be ascertained. It can only be stated that at
the end of the seventeenth century the civilised States
considered themselves bound by a Law of Nations, the
rules of which were to a great extent the rules of Grotius.
This does not mean that these rules have from the end
of that century never been broken. On the contrary,
they have frequently been broken. Although the several
Governments recognised the Law of Nations when its
rules suited their interests, consciously or imconsciously
they violated it in many cases, when they thought that a
rule was opposed to their interests. But whenever this
occurred, the Governments concerned maintained either
that they did not intend to break these rules, or that
their acts were in harmony with them, or that they were
justified by just causes and circumstances in brealdng
them. And the development of the Law of Nations did
not come to a standstill with the reception oi the bulk
of the rules of Grotius. More and more rules were
gradually required, and therefore gradually grew. All
the historically important events and facts of inter-
national life from the time of Grotius down to our own
LAW OF NATIONS AFTER GROTIUS 65
have, on the one hand, given occasion to the manifesta-
tion of the existence of a Law of Nations, and, on the
other hand, in their turn made the Law of Nations
constantly and gradually develop into a more perfect
and more complete system of legal rules. In practice
the attitude of Governments towards the Law of Nations
has been essentially the same up to our days as it was in
former times. They have recognised it exphcitly ; they
have referred to it whenever their interests demanded
it ; but, consciously or unconsciously, they frequently
attempt to evade a rule when they think that their
interests demand such evasion. Yet the fact that they
recognise it indirectly, even if they break it, because
they never admit that they are breaking it, makes the
Law of Natior^ a hving reahty in spite of everything
working against it.
It serves the purpose to divide the history of the
development of the Law of Nations from the time of
Grotius into nine periods — ^namely, 1648-1721, 1721-
1789, 1789-1815, 1815-1856, 1856-1874, 1874-1899, 1899-
1914, 1914-1918, 1918-1920.
§ 44. The ending of the Thirty Years' War through The
the Westphahan Peace of 1648 is the first event of igS-
great importance after the death of Grotius in 1645. ^'^^^•
What makes remarkable the meetings of Osnabriick,
where the Protestant Powers met, and Miinster, where
the Cathohc Powers met, is the fact that there was for
the first time in history a European Congress assembled
for the purpose of settUng matters international by
common consent of the Powers. With the exception of
England, Russia, and Poland, aU the important Chris-
tian States were represented at this Congress, as were
also the majority of the minor Powers ; and all the
Powers represented concluded peace, except France
and Spain, whose forces went on fighting for another
eleven years. The arrangements made by the Congress
VOL. I. E
66 DEVELOPMENT OF THE LAW OF NATIONS
show what a great change had taken place in the condi-
tion of matters international. The Swiss Confederation
and the Netherlands were recognised as independent
States. The 332 different States which belonged to
the Grennan Empire were practically, although not
theoretically, recognised as independent States which
formed a Confederation under the Emperor as its head.
Of these 332 States, 211 were secular States governed
by hereditary monarchs (Electors, Dukes, Landgraves,
and the Uke), 56 were free-city States, and 65 were
ecclesiastical States governed by archbishops and
other Church dignitaries. The theory of the imity of
the civUised world under the German. Emperor and the
Pope as its temporal and spiritual heads was buried for
ever. A multitude of recognised independent States
formed a community on the basis of equaUty of all its
members. The conception of the European equilibrimn^
made its appearance, and became an implicit principle as
a guaranty of the independence of the members of the
Family of Nations. Protestant States took up their
position within this family along with Cathohc States,
as did RepubHcs along with Monarchies.
In the second half of the seventeenth century ^ the
poUcy of conquest initiated by Louis xiv. of France
led to numerous wars. But Louis xiv. always pleaded
a just cause when he made war, and even the estab-
lishment of the iU-famed so-called Chambers of Reunion
(1680-1683) was done under the pretext of law. There
was no later 'period in history in which the princijiies of
International Law were more frivolously violated, but the
violation was always cloaked by some excuse. Five treaties
of peace between France and other Powers during the
' See below, § 51. maoy. Stadents must therefcne be
* The history of International advised to read the third volume
Law during the seventeenth and of Hill's excellent work, A History
eighteenth centuries is intimately of Diplomacy m the International
connected with the history of diplo- Development of Ettrope,
LAW OF NATIONS AFTER GROTIUS 67
reign of Louis xiv. are of great importance : (1) The
Peace of the Pyrenees, which ended in 1659 the war
between France and Spain, who had not come to terms
at the Westphahan Peace. (2) The Peace of Aix-la-
Chapelle, which ended in 1668 another war between
lYance and Spain, commenced in 1667, because France
claimed the Spanish Netherlands from Spain. This
peace was forced upon Louis xiv. through the triple
aUiance between England, Holland, and Sweden. (3)
The Peace of Nymeguen, which ended in 1678 the war
originally commenced by Louis xiv. in 1672 against
Holland, into which many other European Powers were
drawn, and out of which England had already emerged
in 1674 by the Treaty of Westminster. (4) The Peace
of Ryswick, which ended in 1697 the war that had
existed since 1688 between France on one side, and, on
the other, England, Holland, Germany, and Spaiu.
(5) The Peace of Utrecht, 1713, and the Peace of Rastadt
and Baden, 1714, which ended the war of the Spanish
Succession that had lasted since 1701 between France
and Spain on the one side, and, on the other, England,
Holland, Portugal, Prussia, and Savoy.
But wars were not only waged between France and
other Powers during this period. The followiug treaties
of peace must therefore be mentioned : (1) The Peaces
of RoeskUd (1658), Oliva (1660), Copenhagen (also
1660), and Kardis (1661). The contracting Powers
were Sweden, Denmark, Poland, Prussia, and Russia.
(2) The Peace of Breda (1667) between England and
the Netherlands. (3) The Peace of Carlowitz, 1699,
between Turkey, Austria, Poland, and Venice. (4) The
Peace of Nystaedt, 1721, between Sweden and Russia
under Peter the Great.
The year 1721 is epoch-making, because with the
Peace of Nystaedt Russia enters as a member into the
Family of Nations, in which she at once takes the posi-
68 DEVELOPMENT OP THE LAW OP NATIONS
tion of a Great Power. The period ended by the year
1721 shows in many points progressive tendencies re-
garding the Law of Nations. Thus the right of visit
and search on the part of belhgerents over neutral
vessels became recognised. The rule ' free ships, free
goods,' rose as a general postulate, and was embodied
in a number of treaties of commerce, although it was
not universally recognised till 1856. The effective-
ness of blockades, which were first made use of in war
by the Netherlands in 1584 and 1630, hkewise rose as a
general postulate and became recognised in treaties
between Holland and Sweden (1667) and Holland and
England (1674), although its universal recognition was
not realised until the nineteenth century. The freedom
of the high seas, claimed by Grotius and others, began
gradually to obtain recognition in practice, although it
also did not meet with universal acceptance till the
nineteenth century. The balance of power was solemnly
recognised by the Peace of Utrecht as a necessary
principle without which the Law of Nations could not
exist.
The § 45. Before the end of the first half of the eighteenth
1721° century peace in Europe was again disturbed. The
1789. rivalry between Austria and Prussia, which had become
a Kingdom in 1701 and the throne of which Frederick ii.
had ascended in 1740, led to several wars in which
England, France, Spain, Bavaria, Saxony, and Holland
took part. Several treaties of peace were successively
concluded which tried to keep up or re-estabhsh the
balance of power in Europe. The most important of
these treaties were : (1) The Peace of Aix-la-Chapelle
of 1748 between France, England, HoUand, Austria,
Prussia, Sardinia, Spain, and Genoa. (2) The Peace
of Hubertsburg and the Peace of Paris, both of 1763,
the former between Prussia, Austria, and Saxony, the
latter between England, France, and Spain. (3) The
LAW OP NATIONS AFTER GROTIUS 69
Peace of Versailles of 1783 between England, the United
States of America, France, and Spain.
An event of great importance, which showed that
International Law was to some extent a sham, was the
first act in the partition of Poland between Prussia,
Russia, and Austria in 1772. It was only the precursor
of a second partition in 1793, and a third in 1795, by
which the national State of a highly-gifted people was
wiped from the map of Europe.
The wars of this period gave occasion to disputes as to
the rights of neutrals and belMgerents regarding trade in
time of war.i Prussia became a Great Power. The so-
caUed First Armed Neutrahty ^ made its appearance in
1780 with claims of great importance, which were not
generally recognised till 1856. The United States of
America ^ succeeded in establishing her independence,
and became a member of the Family of Nations, whose
future attitude fostered the growth of several rules of
International Law.*
§ 46. AU progress, however, was endangered, and The
indeed the Law of Nations seemed partly non-existent 17^9°^
during the time of the French Revolution and the ^^i^-
Napoleonic wars. Although the French Convention
resolved in 1792 (as stated above, § 30) to create a
' Declaration of the Rights of Nations,' the Revolu-
tionary Government, and afterwards Napoleon i., very
often showed no respect for the rules of the Law of
Nations. The whole order of Europe, which had been
built up by the Westphahan and subsequent treaties of
peace for the purpose of maintaining a balance of power,
was overthrown. Napoleon i. was for some time the
'For the rule of 1756 see below, " See Reeves in AJ., iii. (1909),
vol. ii. § 289 and § 400 n. pp. 547-561.
* On American influence upon
* See below, vol. ii. §§ 289 and International Law see Westengard
290, where details oonoerning the in the Journal of Gomparative Legis-
First and Second Armed Neutrality lation. New Ser. xviii. (1918), pp.
are given. 2-14.
70 DEVELOPMENT OF THE LAW OF :S^ATIOXS
master of Eniope, Russia and England excepted. He
arbitrarily created States and suppr^sed them again.
He divided existing States into portions and muted
separate States. The kings depended upon his good-
will, and they had to follow orders when he commanded.
Especially as regards mantime International Law, a
condition of partial lawlessness arose during this penod.
Already in 1793 England and Russia interdicted all
navigation with the ports of France, with the intention
of subduing her by famine. The French Convention
answered with an order to the French fleet to capture
all neutral ships carrying provisions to the ports of
the enemy or carrying enemy goods. Again Xapoleon,
who wanted to ruin England by destroying her com-
merce, announced in 1806 in his Berlin Decrees the
boycott of aU English goods. England answered * with
the blockade of all French ports and aU ports of ihe
allies of France, and ordered her fleet to capture aU
ships destined to any such port.
When at last the whole of Europe was mobilised
against Napoleon^ and he was finally defeated, the
whole face of Europe was changed, and the former order
of thin^ could not possibly be restored. It was the
task of the European Congress of Vienna in 1814 and
1815 to create a new order and a fresh balance of power.
This new order comprised chi^y the following arrange-
ments : The Prussian and the Austrian monarchies
were re-established, as was also the Germanic Con-
federation, which consisted thenceforth of thirty-nine
member-States. A Kingdom of the Netherlands was
created out of Holland and Belgium. Norway and
Sweden became a Real Union. The old dynasties were
* The legal aspect of the English " See Schonlank in Z.V., Tiii.
Orders in Council of 1807 is well pp. 233-246, who gives an interrating
discussed in Reddie, Se^earehes, ii. account of some of the practices
pp. 23-37. See also Stockder in during the war of 1813-1815.
A.J., X. (1916), pp. 492-508.
LAW OF XATIOXS AITEE GKOTITS 71
restored in Spain, in Sardinia, in Tuscany, and in
Modena, as was also the Pope in Rome. To the nine-
teai cantons of the Swiss Confederation weie added
those of GSeneTa, Valais, and Xeuchlttel, and this Con-
federation was neutralised for all the future. The
Giand Duchy of Poland became a Kingdom in union
with Russia, but with a separate Govemoient and the
official use of the Polish language. The town of Cracow,
with its suiTounding territory, was set up as a free, inde-
pend^it, and neutralised Repubhc,^ under the protec-
tion of Russia, Austna, and Prussia.
But the Tienna Congress did not only estabhsh a new
political order in Eiorope ; it also settled some questions
of International Law. Thus, free navigation was
agreed to on so-called international rivers, which are
rivers navigable from the open sea and running through
the land of different States. It was further arranged
that thenceforth diplomatic agents should be divided
into three classes (Ambassadors, Ministers, Charges
d'Afeures). Xdctlv, a universal prohibition of the
trade in negro slaves was agreed upon.
§ 47. The period after the Yienna Congress begins The
with the soiaUed Hoty Affiance. Already on Sep-jlfg.
tember 26, 1815, before the second Peace of Paris, the ^^^
Emperors of Russia and Austria, and the King of
Prussia, called this affiance into existence, the object of
which was to place a duty upon its members to apply
the principles of Christian morahty in the administra-
tion of the home afhirs of their States, as well as in the
conduct of their international relations. After tiie
Vienna Congress the sovereigns of almost all the Euro-
pean States had joined that alliance with the exception
of England. George iv., at that time prince-regent
onty, did not join, because the Holy Affiance was an
alliance not of the States, but of sovereigns, and there-
' It was snpioessed, acd its temtoiy annexed by Anstiia, in 1346.
72 DEVELOPMENT OP THE LAW OF NATIONS
fore was concluded without the signatures of the respec-
tive responsible Ministers, whereas according to the
EngUsh Constitution the signature of such a responsible
Minister would have been necessary.
The Holy Alhance had not, as such, any importance
for International Law, for it was a rehgious, moral, and
poUtical, but scarcely a legal aUiance. But at the
, Congress of Aix-la-Chapelle in 1818, which the Emperors
of Russia and Austria and the King of Prussia attended
in person, and where it might be said that the principles
of the Holy Alhance were apphed in practice, the Great
Powers signed a declaration,^ in which they solemnly
recognised the Law of Nations as the basis of all inter-
national relations, and in which they pledged themselves
for all the future to act according to its rules. The lead-
ing principle of their pohtics was that of legitimacy,^
as they endeavoured to preserve everywhere the old
dynasties, and to protect the sovereigns of the different
coimtries against revolutionary movements of their
subjects. This led, in fact, to a dangerous neglect of the
principles of International Law regardiug intervention.
The Grreat Powers, with the exception of England,
intervened constantly in the domestic affairs of the
minor States in the interest of the legitimate dynasties
and of an anti-hberal legislation. The Congresses at
Troppau, 1820, Laibach, 1821, Verona, 1822, occupied
themselves with a dehberation on such interventions.
The famous Monroe Doctrine (see below, § 139) owes
its origin to that dangerous poUcy of the European
Powers as regards intervention, although this doctrine
embraces other points besides intervention. As, from
1810 onwards, the Spanish ^ colonies in South America
' See Martens, N.R., iv. p. 560. and became an Empire under Don
• See Brookhaus, Das Legitimitats- Pedro, the brother of the King of
princip (1868), Portugal. It was not until 1889 that
' The Portuguese colony of Brazil Brazil became a Republic.
declared its independence in 1822,
LAW OF NATIONS AFTEE aROTIUS 73
were falling off from the mother comitry and declaring
their independence, and as Spain was, after the Vienna
Congress, thinking of reconquering these States with
the help of other Powers who upheld the principle of
legitimacy. President Monroe delivered his message on
December 2, 1823, which pointed out, amongst other
things, that the United States could not allow the inter-
ference of a European Power with the States of the
American continent.
Different from the intervention of the Powers of the
Holy Alhance in the interest of legitimacy were the
two interventions in the interest of Greece and Belgium.
England, France, and Russia intervened in 1827 in the
struggle between Turkey and the Greeks, an intervention
which led finally in 1830 to the independence of Greece.
And the Great Powers of the time, namely, England,
Austria, France, Prussia, and Russia, invited by the
provisional Belgian Government, intervened in 1830
in the struggle between the Dutch and the Belgians,
and secured the formation of a separate Kingdom of
Belgium.
It may be maintained that the estabhshment of
Greece and Belgium implied the breakdown of the
Holy Alhance. But it was not till the year 1848 that
this alhance was totally swept away through the dis-
appearance of absolutism and the victory of the consti-
tutional system in most States of Europe. Shortly
afterwards, in 1852, Napoleon in., who adopted the
principle of nationality,^ became Emperor of France.
Since he exercised preponderant influence in Europe,
one may say that this principle of nationahty super-
seded in European pohtics the principle of legitimacy.^
The last event of this period was the Crimean War,
which led to the Peace as well as to the Declaration
' See Bulmerinoq, Praxii, Theorie und Codification des Volkerrechts (1874),
pp. 53-70.
74 DEVELOPMENT OP THE LAW OF NATIONS
of Paris in 1856. This war broke out in 1853 between
Russia and Turkey. In 1854, England, France, and
Sardinia joined Turkey, but the war continued never-
theless for another two years. Finally, however, Russia
was defeated, a Congress assembled at Paris, where
England, France, Austria, Russia, Sardinia, Turkey,
and eventually Prussia, were represented, and peace
was concluded in March 1856. In the Peace Treaty,
Turkey is expressly received as a member into the
Family of Nations. Of greater importance, however,
is the celebrated Declaration of Paris regarding mari-
time International Law which was signed on April 16,
1856, by the delegates of the Powers that had taken
part in the Congress. This declaration abohshed
privateering, recognised the rules that enemy goods on
neutral vessels and that neutral goods on enemy vessels
cannot be confiscated, and stijpulated that a blockade
in order to be binding must be effective. Together
with the fact that at the end of the first quarter of the
nineteenth century the principle of the freedom of
the high seas ^ became universally recognised, the
Declaration of Paris is a prominent landmark in the
progress of the Law of Nations. The Powers that had
not been represented at the Congress of Paris were
invited to sign the declaration afterwards, and the
majority of the members of the Family of Nations did
sign it before thel end of the year 1856. The few States,
such as the United States of America, Spaia, Mexico,
and others, which did not then sign,^ have ia practice,
since 1856, not acted in opposition to the declaration,
and Japan acceded to it in 1886, Spain in 1908, and
Mexico in 1909. One may therefore, perhaps, maintain
that the Declaration of Paris has already become, or will
' See below, § 251. not go far enough, and did not
" It should be mentioned that the interdict capture of private enemy
United States did not sign the vessels.
Declaration of Paris because it did
LAW OF RATIONS AFTER GEOTIUS 75
soon become, universal International Law through
custom.^
§ 48. The next period, the time from 1856 to 1874, The
is of prominent importance for the development of the ils'g.
Law of Nations. Under the aegis of the principle of ^^'^*-
nationahty, Austria turns in 1867 into the dual monarchy
of Austria-Hungary, and Italy as weU as Germany
become united. The unity of Italy rises out of the war
waged by France and Sardinia against Austria in 1859,
and Italy ranges henceforth among the Great Powers of
Europe. The unity of Germany is the combined result
of three wars : that of Austria and Prussia in 1864
against Denmark on account of Schleswig-Holstein,
that of Prussia and Italy against Austria in 1866, and
that of Prussia and the allied South German States
against France in 1870. The defeat of France in 1870
has the consequence that Italy takes possession of the
Papal States, whereby the Pope disappears from the
number of governing sovereigns.
The United States of America rises through the suc-
cessful termination of the Civil War in 1865 to the
position of a Great Power. Several rules of maritime
International Law owe their further development to
this war. And the instructions concerning warfare on
land, pubhshed in 1863 by the Government of the United
States, represent the first step towards codification of
the Laws of War. In 1864 the Geneva Convention for
the amelioration of the condition of soldiers woimded in
armies in the field is, on the initiation of Switzerland,
concluded by nine States, and in time almost aU civi-
hsed States become parties to it. In 1868 the Declara-
tion of St. Petersburg, interdicting the emplojonent in
war of explosive balls below a certain weight, is signed
by many States. Since Russia in 1870 had arbitrarily
shaken off the restrictions of Article 11 of the Peace
' The question is discussed in The Marie Glwier, 1 B. and C.P.C. 53.
76 DEVELOPMENT OP THE LAV* OF NATIONS
Treaty of Paris of 1856 neutralising the Black Sea, the
Conference of London, which met in 1871, and was
attended by the representatives of the Powers which
were parties to the Peace of Paris of 1856, solemnly
proclaimed ' that it is an essential principle of the Law
of Nations that no Power can liberate itself from the
engagements of a treaty, or modify the stipulations
thereof, unless with the consent of the contracting
Powers by means of an amicable arrangement.' The
last event in this period is the Conference of Brussels
of 1874 for the codification of the rules and usages of
war on land. Although the signed code was never
ratified, the Brussels Conference was nevertheless epoch-
making, since it showed the readiness of the Powers to
come to an understanding regarding such a code.
The § 49. After 1874 the principle of nationaUty con-
1874- tinues to exercise its influence as before. Under its
segis takes place the partial decay of the Ottoman
Empire. The refusal of Turkey to introduce reforms
regarding the Balkan population leads in 1877 to war
between Turkey and Russia, which is ended in 1878
by the Peace of San Stefano. As the conditions of this
treaty would practically have done away with Turkey iu
Europe, England intervenes, and a European Congress
assembles at Berhn in June 1878, which modifies
materially the conditions of the Peace of San Stefano.
The chief results of the Berhn Congress are : (1) Serbia,
Roumania, and Montenegro become independent and
sovereign States ; (2) Bulgaria becomes an independent
principaHty under Turkish suzerainty ; (3) the Turkish
provinces of Bosnia and Herzegovina come under the
administration of Austria-Himgary ; (4) a new proviuce
under the name of Eastern Rumeha is created in Turkey,
and is to enjoy great local autonomy, (according to an
arrangement of the Conference of Constantinople in
1885-1886 a bond is created between Eastern Rumeha
1899.
LAW OP NATIONS AFTER GROTroS 77
and Bulgaria by the appointment of the Prince of
Bulgaria as governor of Eastern Eumeha) ; (5) free
navigation on the Danube from the Iron Gates to its
mouth in the Black Sea is proclaimed.
In 1889 Brazil becomes a Republic and a Federal
State (the United States of Brazil). In the same year
the first Pan-American Congress meets at Washington.
In 1897 Crete revolts against Turkey, war breaks
out between Greece and Turkey, the Powers interfere,
and peace is concluded at Constantinople, Crete
becomes an autonomous half sovereign State under
Turkish suzerainty with Prince George of Greece as
governor, who, however, retires in 1906.
In the Far East war breaks out in 1894 between
China and Japan, on account of Korea. China is de-
feated, and peace is concluded in 1895 at Shimonoseki.^
Japan henceforth ranks as a Great Power. That she
must from this time be considered a full member of the
Family of Nations becomes apparent from the treaties
concluded soon afterwards by her with other Powers
for the purpose of aboUshing their consular jurisdiction
within the boundaries of Japan,
In America the United States intervenes in 1898 in
the revolt of Cuba against the motherland, whereby
war breaks out between Spain and the United States.
The defeat of Spain secures the independence of Cuba
through the Peace of Paris ^ of 1898. The United
States acquires Porto Rico and other Spanish West
Indian Islands, and, further, the Phihppine Islands,
whereby she becomes a colonial Power.
An event of great importance during this period is
the Congo Conference of Berlin, which took place in
1884-1885, and at which England, Germany, Austria-
' See Martens, N.E.O., 2nd Ser. xxxii. p. 74, and Benton, Inter-
xxi. p. 642. national LaiU'omd Diplomacy of the
* See Martens, N.R.O., 2nd Ser. Spmiih-Americcm War (1908).
78 DEVELOPMENT OF THE LAW OF NATIONS
Hungary, Belgium, Denmark, Spain, the United States
of America, France, Italy, Holland, Portugal, Russia,
Sweden-Norway, and Turkey were represented. This
Conference stipulated freedom of commerce, interdiction
of slave-trade, and neutralisation of the territories in the
Congo district, and secured freedom of navigation on the
rivers Congo and Niger. The so-called Congo Free
State was recognised as a member of the Family of
Nations.!
A second fact of great importance during this period
is the movement towards the conclusion of international
agreements concerning matters of international admini-
stration. This movement finds expression in the estab-
lishment of numerous International Unions with special
International Ofl&ces. Thus a Universal Telegraphic
Union is estabhshed in 1875, a Universal Postal Union
in 1878, a Union for the Protection of Industrial Pro-
perty in 1883, a Union for the Protection of Works of
Literature and Art in 1886, a Union for the PubHcation
of Custom Tariffs in 1890. There are also concluded
conventions concerning : (1) Private International Law
(1900 and 1902) ; (2) Railway Transports and Freights
(1890) ; (3) the Metric System (1875) ; (4) PhyUoxera
Epidemics (1878 and 1881) ; (5) Cholera and Plague
Epidemics (1893, 1894, etc.); (6) Monetary Unions
(1865, 1878, 188.5, 1893).
A third fact of great importance is that in this period
a tendency arises to settle international conflicts more
frequently than in former times by arbitration.
Numerous arbitrations actually take place, and several
treaties are concluded between different States stipu-
lating the settlement by arbitration of aU conflicts which
might arise in future between the contracting parties.
The last fact of great importance which is epoch-
making for this, period is the Peace Conference of the
* It lost its membership in 1908 (see above, § 28 (6), and below, § 50).
LAW OF NATIONS AFTER GROTIUS 79
Hague of 1899. This Conference produces, apart from
three declarations of minor importance, a Convention
for the Pacific Settlement of International Conflicts, a
Convention regarding the Laws and Customs of War
on Land, and a Convention for the Adaptation to
Maritime Warfare of the Principles of the Geneva Con-
vention. It also formulates, among others, the three
wishes (1) that a Conference should in the near future
regulate the rights and duties of neutrals ; (2) that a
future Conference should contemplate a declaration
of the inviolabiUty of private property in naval war-
fare ; (3) that a future Conference should settle the ques-
tion of the bombardment of ports, towns, and villages
by naval forces.
§ 50. Soon after the Hague Peace Conference, in The
October 1899, war breaks out in South Africa between 1899.
Great Britain and the two Boer Repubhcs, which ^®^*-
leads to their subjugation at the end of 1901. The
assassiuation on June 10, 1900, of the German Minister
and the general attack on the foreign legations at
Peking necessitate united action of the Powers against
China for the purpose of vindicating this violation of
the fundamental rules of the Law of Nations. Friendly
rel9,tions are, however, re-estabHshed with China on
her submitting to the conditions enumerated in the
Final Protocol of Peking,^ signed on September 7, 1901.
In December 1902, Great Britain, Germany and Italy
institute a blockade of the coast of Venezuela for the
purpose of making her comply with their demands for
the indemnification of their subjects wronged during
civil wars in Venezuela, and the latter consents to pay
indemnities, to be settled by a mixed commission of
diplomatists.^ As, however, Powers other than those
blockading likewise claim indemnities, the matter is
» See Martens, N.B.0.,l2nd Ser. xxxii. p. 94.
* See Martens, N'.B.G.,\3rd Ser. i, p. 46,
80 DEVELOPMENT OF THE LAW OF NATIONS
referred to the Permanent Court of Arbitration at the
Hague, which in 1904 gives its award ^ in favour of the
blockading Powers. In February 1904 war breaks
out between Japan and Russia ^ on account of Man-
churia and Korea. Russia is defeated, and peace is
concluded through the mediation of the United States of
America, on September 5, 1905, at Portsmouth.^ Korea,
now freed from the influence of Russia, places herself by
the Treaty of Seoul ^ of November 17, 1905, under the
protectorate of Japan. Five years later, however, by
the Treaty of Seoul ^ of August 22, 1910, she merges
entirely into Japan.
The Real Union between Norway and Sweden, which
was estabhshed by the Vienna Congress in 1815, is peace-
fully dissolved by the Treaty of Stockholm (Karlstad) *
of October 26, 1905. Norway becomes a separate
Kingdom under Prince Charles of Denmark, who takes
the name of Haakon vn., and Great Britain, Germany,
Russia, and France guarantee by the Treaty of Chris-
tiania "^ of November 2, 1907, the integrity of Norway
on condition that she would not cede any part of her
territory to any foreign Power.
The rivalry between France and Germany — ^the latter
protesting against the position conceded to France in
Morocco by the Anglo-French agreement signed at
London on April 8, 1904 — leads in January 1906 to the
Conference of Algeciras, in which Great Britain, France,
Germany, Belgium, Holland, Italy, Austria-Hungary,
Portugal, Russia, Sweden, Spain, and the United States
of America take part, and where, on April 7, 1906, the
1 See Martens, N.S.O., 3rd Ser. ' See Martens, N.R.O., 3rd Ser.
i. p. 57. iv. p. 24.
* See Hershey, The International
Law and Diplomacy of the Ruaso- ° See Martens, N.R.O., 2nd Ser.
Jafpane.se Wa/r (1906). xxxiv. p. 700.
' See Martens, N.S.O., 2nd Ser.
xxxiii. p. 3. ' See Martens, N.R.G., 3rd Ser.
* See Martens, N.R.G., 2nd Ser. i. p. 14, and ii. p. 9, and below,
xxxiv. p. 727. § 574.
LAW OF NATIONS AFTER GROTIUS 81
General Act of the International Conference of Algeciras ^
is signed. This Act, which recognises, on the one hand,
the independence and integrity of Morocco, and, on
the other, equal commercial facihties for all nations in
that country, contains : (1) a declaration concerning
the organisation of the Moroccan poUce ; (2) regulations
concerning the detection and suppression of the ilUcit
trade in arms ; (3) an Act of concession for a Moroccan
State Bank ; (4) a declaration concerning an improved
jHield of the taxes and the creation of new sources of
revenue ; (5) regulations respecting customs and the
suppression of fraud and smuggling ; (6) a declaration
concerning the pubhc services and pubHc works. But
this Act does not produce a condition of affairs
of any permanency. Since, in 1911, internal dis-
turbances in Morocco lead to mihtary action on the
part of France and Spain, Germany, in July of the
same year, sends a man-of-war to the port of Agadir.
As the Moroccan question has been reopened, fresh
negotiations for its settlement take place, and on
November 4, 1911, France and Germany sign two
treaties,^ by which a French protectorate of Morocco is
recognised, and as a quid fro quo France cedes a part of
her Congo territory to Germany.
On December 13, 1906, Great Britain, France, and
Italy sign the Treaty of London,^ by which they agree
to co-operate in maintaining the independence and
integrity of Abyssinia.
On August 18, 1907, Great Britain and Russia sign
the Treaty of St. Petersburg,* concerning Persia,
Afghanistan, and Thibet. The integrity and independ-
ence of Persia and of Afghanistan, and the protectorate
' See Martens, N.R.G., 2nd Ser. xxxv. p. 556, and 3rd Ser. v. p.
xxxiv. p. 238. 733.
* See Martens, N R.G., 3rd Ser.
V. p. 645. * See Martens, N.R.Q., 3rd Ser,
*^See Martens, N.R.G., 2nd Ser. i. p. 8.
VOL. I. F
82 DEVELOPMENT OF THE LAW OF NATIONS
of China over Thibet are recognised, and arrangements are
made concerning economic conditions in these countries.
Two events of importance occur in 1908. The first
is the merging of the Congo Free State ^ into Belgium.
The other is the crisis in the Near East caused by the
ascendency of the so-called Young Turks and the intro-
duction of a constitution in Turkey. Simultaneously, on
October 5, 1908, Bulgaria declares herself independent,
and Austria-Hungary proclaims her sovereignty over
Bosnia and Herzegovina, two Turkish provinces which
had been under her administration since 1878. This
violation of the Treaty of Berhn considerably endangers
the peace of the world, and an international conference
is proposed for the purpose of reconsidering the settle-
ment of the Near Eastern question. Austria-Hungary,
however, does not consent to this, but prefers to nego-
tiate with Turkey alone in the matter, and a Protocol ^
is signed by the two Powers on February 26, 1909,
according to which Turkey receives a substantial in-
demnity in money and other concessions. Austria-
Hungary negotiates hkewise with Montenegro alone,
and consents to the modifications in Article 29 of the
Treaty of BerHn concerning the harbour of Antivary,
which is to be freed from Austro-Hungarian control,
and is henceforth to be open to warships of all nations.
Whereupon the demand for an international conference
is abandoned, and the Powers notify,^ on April 7, 1909,
their consent to the aboUtion of Article 25 and the
amendment of Article 29 of the Treaty of Berlin.
In 1910 Portugal becomes a Eepubhc ; but the
Powers, although they enter provisionally into com-
munication with the de facto Grovernment, do not recog-
» See Martens, N.R.G., 3rd Ser. ' See Martens, N.R.G., 3rd Ser.
ii, p. 101. iv. p. 31 ; BlooiszewskiiniJ.G., xvii.
(1910), pp. 417-449 ; and Krunski,
' See Martens, N.R.G., 3rd Ser. L' Annexion de la Bosnie et de
ii. p. 661. I' Henigovine en 1908 (1912).
LAW OF NATIONS AFTER GROTIUS 83
nise the Republic until September 1911, after the
National Assembly has adopted the repubhcan form
of government.
In September 1911 war breaks out between Italy
and Turkey, on account of the alleged maltreatment
of Italian subjects in Tripoli. Turkey is defeated, and
cedes by the Peace Treaty of Lausanne ^ of October 18,
1912, Tripoli and Cyrenaica to Italy. But before this
treaty is signed, Bulgaria, Grreece, Montenegro, and
Serbia declare war agaiost Turkey, and the war comes to
an end by the Peace Treaty of London ^ of May 17, 1913,
by which Turkey cedes the greater part of her European
territory to her adversaries, and the island of Crete to
Greece. The fate of the Turkish islands in the .^gean Sea
is to be settled by the six Great Powers of Europe, and
Albania is constituted an independent State. How-
ever, even before this treaty is ratified, war breaks out
between Bulgaria on the one hand, and Greece, Serbia,
Montenegro, and Roumania on the other. Turkey
likewise makes war on Bulgaria. The latter is defeated,
and peace is concluded at Bucharest on July 28, 1913,
and at Constantinople on September 16, 1913.'
In 1914 the United States intervenes in Mexico.
American forces occupy Vera Cruz, but withdraw on
November 23.*
International Law as a body of rules for the inter-
national conduct of States makes steady progress during
this period. This is evidenced by congresses, confer-
ences, and law-making treaties. Of conferences and
* See Martens, N'.R.G., 3rd Ser. the United States recognises the
Vii. p. 7, and Barclay, The Turco- Government of Carranza as the de
Italian War and its Prohlemt {1912) ; facto Government of Mexico. In
Baspisardi-MirabelliiniJ./.,2ndSer. March 1916 American forces again
xiv. (1912), pp. 159-186, 411-448; XV. enter Mexico, in agreement with
(1913), pp. 85-138, 523-584, 649-672. the Carranza Government ; they are,
" See Martens, N'.B.G., 3rd Ser. however, withdrawn in January
viu. p. 16. 1917. See A.J., xi. (1917), pp.
' See Martens, N.R.G., 3rd Ser. 399-406. In May 1920, as this
viii. pp. 61 and 78. volume goes to press, revolution
' A.J., X. (1916), p. 357. In 1915 breaks out in Mexico.
84 DEVELOPMENT OF THE LAW OF NATIONS
congresses must be mentioned the second, third, and
fourth Pan-American Congresses/ which take place at
Mexico in 1901, at Rio in 1906, and at Buenos Ayres in
1910. Although the law-making treaties of these con-
gresses have not found ratification, their importance
cannot be denied. The first Pan-American Scientific
Congress meets at Santiago in 1908.^ Further, in 1906 a
conference assembles in Geneva for the purpose of
revising the (Jeneva Convention of 1864 concerning
the woimded in land warfare, and on July 6, 1906,
the new Gfeneva ^ Convention is signed. Of the greatest
importance, however, are the second Hague Peace
Conference of 1907, and the Xaval Conferraice of
London of 1908-1909.
The second Peace Conference assembles at the Hague
on June 15, 1907. Whereas at the Conference of 1899
only 26 States were represented, 44 are represented at
the second Peace Conference. The result of this Con-
ference is contained in its Final Act,* which is signed
on October 18, 1907, and embodies no fewer than
thirteen law-making conventions, besides a declaration
of minor importance. Of these conventions, 1, 4, and
10 are mere revisions of conventions agreed upon at
the first Peace Conference of 1899, but the others are
new, and concern: the employment of force for the
recovery of contract debts (2) ; the commencement of
hostilities (3) ; the rights and duties of neutrals in land
warfare (5) ; the status of enemy merchant ships at the
outbreak of hostilities (6) ; the conversion of merehant-
men into men-of-war (7) ; the laying of submarine mines
(8) ; the bombardment by naval forces (9) ; restrictions
on the right of capture ia maritime war (11) ; the estab-
' See Moore, vi S 969 ; Fried, Congress met st Washington in
Pan-America (1910) ; Barrett, The 1915. A.J., x. (1916), p. 13a
P(m-Aviarican Union (1911). ' See Martens, y.B.e., 3td Ser.
ii. p. 323.
« A.J., ix. (191-5), p. 919. The * S«e ilartens. y.S.G., Srd Ba.
second Pan • American Scientific iii. p. 323.
LAW OF NATIONS AFTER GEOTroS 85
Kshment of an International Prize Court (12) ; the
rights and duties of neutrals in maritime war (13).
The Naval Cbnference of London assembles on
December 4, 1908, for the purpose of discussing the
possibility of creating a code of prize law, without
which the International Prize Court, agreed upon at
the second Hague Peace Conference, could not be
estabUshed, and produces the Declaration of London,
signed on February 26, 1909. This declaration contains
71 articles, and sought to settle in nine chapters the law
concerning : (1) blockade ; (2) contraband ; (3) un-
neutral service ; (4) destruction of neutral prizes ; (5)
transfer to a neutral flag ; (6) enemy character ; (7)
convoy ; (8) resistance to search ; and (9) compensa-
tion. The declaration is accompanied by a General
Report on its stipulations which is intended to serve as
an official commentary. Although the Declaration of
London remains unratified, it is a landmark in the history
of International Law, because in it is embodied the first
attempt of the Powers to create a code of prize law.
There is no doubt that in some future time the attempt
will be renewed.
The movement which began in the last half of the
nineteenth century towards the conclusion of inter-
national agreements concerning matters of international
administration, develops favourably during this periodj^
The following conventions are the outcome of this
movement : (1) concerning the preservation of wild
animals, birds, and fish in Africa (1900) ; (2) concern-
ing international hydrographic and biological investi-
gations in the North Sea (1901) ; (3) concerning protec-
tion of birds useful for agriculture (1902) ; (4) concern-
ing the production of sugar (1902) ; (5) concerning the
White Slave traffic (1904) ; (6) concerning the establish-
ment of an International Agricultural Institute at Rome
(1905) ; (7) concerning unification of the Pharmacopceial
86 DEVELOPMEKT OF THE LAW OF NATIONS
Formulae (1906) ; (8) conceming tlie prohibition of the
use of white phosphorus (1906) ; (9) conceming the pro-
hibition of night work for women (1906) ; (10) concem-
ing the international circulation of motor vehicles (1909) ;
conceming uniform rules with respect to collisions,
assistance, and salvage at sea (1910) ; conceming the
suppression of obscene publications (1911) ; conceming
international radio-telegraphy (1912) ; concerning the
traffic in opiimi (1912 and 1914) ; conceming the safety
of hfe at sea (1914).
It is, lastly, of the greatest importance to mention
that the so-caUed peace movement,^ which aims at the
settlement of all international disputes by arbitration,
or by judicial decision of an international court, gains
considerable influence over the Grovemments and pubUc
opinion everywhere since the first Hague Peace Con-
ference. A great number of arbitration treaties are
agreed upon, and the Permanent Court of Arbitration
estabUshed at the Hague gives its first award ^ in a case
in 1902 and its fifteenth in 1914. The influence of these
decisions upon the peaceful settlement of international
differences generally is enormous. It is a hopeful sign
that, whereas most of the existing arbitration treaties
exempt conflicts which concern the vital interests, the
honour, and the independence of the parties, Argentina
andChih in 1902,Denmark and HoUand inl904, Denmark
and Italy in 1905, Denmark and Portugal in 1907, Argen-
tina and Italy in 1907, the Central American Republics of
Costa Rica, Guatemala, Honduras, Nicaragua, and San
Salvador in 1907, and Italy and Holland in 1909, enter
into general arbitration treaties according to which (dl
differences, without any exception, shall be settled by
arbitration. Likewise remarkable are the Bryan Peace
Treaties, that general series of treaties initiated by
' See Fried, Sandbuch der Friedens-Bewegvng, 2nd ed., voL i. 1911,
yol ii, 1913. » See below, § 476.
LAW OP NATIONS AFTEK GEOTIUS 87
Mr. Bryan in 1914, when Secretary of State at Wash-
ington, and made between the United States and no
less than thirty other States. These treaties provide
that, in cases where diplomacy fails to efiect a settle-
ment, and no recourse is had to arbitration, disputes
shaU be submitted for investigation to an International
Commission of Inquiry, which is to report within a
specified time. The parties agree not to resort to war
until the report of the Commission is made.^
§ 50a. Just as during the period 1789-1815, so again The
during the World War, all progress is endangered, and ^iff
indeed the Law of Nations would in part seem to be i^J*-
non-existent. This war breaks out in consequence of
the murder of the Austrian Archduke, Francis Ferdinand,
at Serajevo on Jime 28, 1914. One month afterwards,
on July 28, 1914, Austria-Hungary declares war on
Serbia. On August 1, Germany declares war on Kussia,
and on August 3, against France. On August 4,
German troops violate Belgian neutrality at Gemmenich,
and Great Britain declares war on Germany. Thus
opens the World War ; Germany and Austria are joined
by Turkey on October 30, 1914, and Bulgaria on October
11, 1915 ; the six AUied Powers — Great Britain, France,
Russia, Belgium, Serbia, and Montenegro — are joined
by Japan on August 23, 1914, Italy on May 23, 1915,
the United States on April 6, 1917, and by a large
number of smaller Powers. The full number of States
which declare war on Germany, or break off diplomatic
relations with her, during the World War, is twenty-
seven.
Germany opens her maritime warfare by laying mines
on the high seas, and her land warfare by violating the
laws of war in Belgium. Her troops sack Louvain.
' See A.J.jix. (1915), pp. 175 and States on September 15, 1914, and
495. Such a treaty was concluded ratified on November 10, 1914.
between Great Britain and the United
88 DEVELOPMENT OF THE LAW OP NATIONS
She bombards undefended towns from the sea and from
the air, and introduces the use of poison gas. These
and countless other violations of International Law must
be discussed in detail in the second volume of this work.
In the first month of the war Great Britain, France, and
Russia declare their intention of putting in force, subject
to certain modifications, the imratified Declaration of
London; an attempt made by the United States of
America, on August 7, to persuade both the AUied
Powers and the Central Powers to adopt the wJwle
declaration fails.^ On December 28, 1914, the United
States Government complains of British interferen^ce
with American trade, and diplomatic correspondence
between Great Britain, France, and the United States
of America, with regard to the rights and duties of
neutral Powers, continues imtil the United States
declares war on Germany in 1917. This correspond-
ence will also require attention in the second volume.
On November 5, 1914, Great Britain annexes Cyprus,
and on December 18, 1914, declares a protectorate over
Egypt.
Early in 1915, on February 4, Germany declares the
waters round the British Isles to be a war zone, and
proclaims that ' all enemy ships found in that area will
be destroyed, and neutral vessels may be exposed to
danger ' ; she proceeds to torpedo merchant ships at
sight, and fires at hospital ships in dayUght. This
declaration initiates the correspondence between Gtermany
and the United States regarding the conduct of maritime
warfare, and other matters, which is continued until the
United States declares war on Germany in 1917. On
March 11, the British Government announces, in concert
with its AUies, that, as a measure of retahation, it will
endeavour to prevent commodities of any kind from
reaching or leaving Grermany. On May 7, 1915, a
' A.J. (1915), Special Supplement, p. 7.
LAW OF NATIONS AFTER GROTIUS 89
German submarine sinks by a torpedo the I/usitania, a
British Uner crowded with civihan passengers.^
In the following year, on July 7, 1916, the British
and French Governments make it known that they are
no longer prepared to give effect to any part of the un-
ratified Declaration of London, and ' must confine
themselves simply to appljdng the historic and admitted
rules of the Law of Nations.' During the winter of
1916, proposals of peace by the Central Powers are but
the prelude to more desperate enterprises by Germany
in the next year.
On January 31, 1917, Germany announces that she
will stop all sea traffic, that of neutrals included, in the
' blockade zone ' around Great Britain, France, and
Italy, and in the Eastern Mediterranean. ' All ships
met within that zone will be sunk.'^ To this Great
Britain rephes, on February 16, with a new Order in
Council, announcing further measures, by way of re-
prisals, designed to ' maintain the efficiency of those
previously taken to prevent commodities of any kind
from reaching or leaving the enemy countries.' ^ The
answer of the United States of America to the German
challenge is the rupture of diplomatic relations on
February 3, and a declaration of war on April 6. The
development of ' unrestricted ' submarine warfare also
leads Great Britain, on March 10, 1917, to renew the
attempts, previously made on August 8, 1914, and
March 7, 1915, to induce Holland to admit defensively-
armed merchantmen to Dutch ports, but again without
success.*
In March 1917 revolution breaks out in Eussia,
followed by the abdication of the Czar Nicholas.
* Pari. Papers, Misc., No. 22 ' London Gazette, February 21,
(1916), Cd. 8293. 1917.
' See memoranda enclosed in Ger-
man Note to the United States of ' Pa^l. Papers, Misc., No. 14
January 31, 1917, in A. J., id. (1917), (1917), Cd. 8690.
Special Supplement, pp. 330-335.
90 DEVELOPMENT OF THE LAW OP NATIONS
During this year tlie Allied Powers intervene in
Greece. Greece had refused to regard the onslaught
of Bulgaria upon Serbia in 1915 as a casus foederis under
the Greco-Serbian alUance (see below, § 573), and, owing
to the German associations of King Constantine, was
adopting an attitude of ' benevolent neutraUty ' (see
below, vol. ii. § 304) in favour of Germany. The Alhed
intervention results in the deposition of the King, and
Greece declares war on Germany on June 29, 1917.^
The heavy fighting round Ypres in the summer and
autumn of this year leads to a controversy between the
British and Dutch Governments, with regard to the
transit through Holland of material for the construc-
tion of German concrete defences in Flanders, and for
other warlike purposes.^
During the winter of 1917 the stress of the German
submarine campaign drives the Dutch mercantile fleet
into port ; early in 1918, the Allied and Associated
Powers, after abortive negotiations with Holland, re-
quisition the Dutch shipping in their harbours.^
On March 3, 1918, Germany concludes a treaty of
peace with the ' Bolshevik ' Government of Russia at
Brest Litovsk ; and on May 7, Roumania, under pres-
sure of invasion by the Central Powers, signs the Treaty
of Bucharest.
In the spring of 1918, Germany begins that series
of attacks which brings her close to Amiens and within
range of Paris, and is to be her supreme effort. In the
summer and autumn her armies are roUed back across
Northern France, and disasters overtake her aUies. In
October she opens the negotiations which lead to the
granting to her of an armistice by the AUied and Asso-
ciated Powers on November 11, 1918. Bulgaria has
1 See Ion in A.J., xi. (1917), '^ See PaW. Popcrs, Miso., No. 17
pp. 46-73, 327-357, and xii. (1918), (1917), Cd. 8693.
pp. 312-337, 562-588, 796-812. » Misc., No. 11 (1918), Cd. 9025.
LAW OF NATIONS AFTEB GROTIUS 91
already secured an armistice on September 29, Turkey
on October 30, and Austria on November 3.
506. The Peace Conference formally opens on January The
18,1 1919. The twenty-seven AUied and Associated con-^
Powers send plenipotentiaries, and the self-governing ^^J^^°^^
British Dominions and India are separately represented World
within the British Empire Delegation. No delegates igig.'
are present on behalf of Germany or her allies. The ^^^•
first draft of the Covenant of the League of Nations is
prepared by the middle of February, and is adopted,
after revision, at the 5th Plenary Session of the Con-
ference on April 28. The original intention to conclude
preliminaries of peace with Germany, and then pro-
ceed to the details of the resettlement, is abandoned,
and in May the definitive treaty is presented to the
German plenipotentiaries, who have been summoned
to Paris to receive it. After some modifications, the
Treaty of Peace between the Allied and Associated
Powers and Germany is signed at Versailles on June
28, 1919.^ On the same day are signed two treaties —
one between Great Britain and France, and the other
between the United States and France — respecting
assistance to France in the event of unprovoked aggres-
sion by Germany,^ an agreement between the British
Empire, the United States of America, France, Belgium,
and Germany, with regard to the mihtary occupation of
the territories of the Rhine (provided for in the Treaty
of Peace with Germany),* and a treaty between the
Principal AlUed and Associated Powers (the British
Empire, the United States of America, France, Italy,
^ A valuable aooount of the Peace is referred to in this book as ' the
Conf erenoe at Paris during the year Treaty of Peace with Germany. '
1919 is contained in the New Year * Treaty Ser. No. 6 (1919), Cmd.
Supplement of The Times, January 1, 221. See below, § 5696, especially
1920. as to the coming into force of these
Defence of France Treaties.
2 Treaty Ser. No. 4 (1919), Omd. * Treaty Ser. No. 7 (1919), Cmd.
153, See below, § 568e. This treaty 222.
92 DEVELOPMENT OF THE LAW OP NATIONS
and Japan) and Poland, with regard to the protection
of racial, religious, and linguistic minorities, commercial
relations, and the accession of Poland to a number of
general treaties.^
The Conference now proceeds to complete the draft
Treaty of Peace with Austria, which, as a result of the
World War, has separated from Hungary. The terms
are presented to the Austrian plenipotentiaries in July
1919, and, after modifications in the economic and
financial clauses, the Treaty of Peace between the Allied
and Associated Powers and Austria is signed at St.
Germain on September 10, 1919.^ Other important
treaties signed on the same day are (1) two treaties
between the Principal Allied and Associated Powers
and Czecho-Slovakia^ and the Serb-Croat-Slovene State*
respectively, which contain provisions similar to those
in the treaty with Poland above referred to ; (2) a
convention revising the General Act of Berlin of 1885
and the General Act and Declaration of Brussels of
1890 ; ^ (3) a convention relating to the liquor traffic
in Africa ; ® and (4) a convention for the control of
the trade in arms and ammunifcion.''
The Conference, having produced an International
Air Convention which is signed on October 13,^ turns
to Balkan problems and to the terms of peace for
Bulgaria. Although the allocation of a large part of
Thrace is left undetermined by it, the Treaty of Peace
between the AlUed and Associated Powers and Bulgaria
is signed at Neuilly on November 27, 1919.^ On
1 Treaty Ser. No. 8 (1919), Omd. " Treaty Ser. No. 18 (1919), Omd.
223. See below, § 5687i. 477. See below, §§ 564 and 566.
2 Treaty Ser. No. 11 (1919), Cmd. ' Treaty Ser. No 19 (1919), Omd.
400. See below, §568/ This treaty ^^f^^^l^^^^^^'J ^^A no^c^ rrr,A
is referred to in this book aa 'the ' Treaty Ser. No. 12 (1919), Cmd.
Treaty of Peace with Austria. ' *lf „ ^ee below, § 568c.
* See below, § 5686.
Treaty Ser. No. 20 (1919), Cmd. 9 Treaty Ser. No. 5 (1920), Cmd.
479. See below, S 568A. 522. See below, § 568?. This treaty,
* Treaty Ser. No. 17 (1919), Cmd. is referred to in this book as 'the-l
461. See below, § 56Sh. Treaty of Peace with Bulgaria.'
LAW OF NATIONS AFTER GEOTIUS 93
December 10, Roumania signs a treaty with the Principal
AlUed and Associated Powers providing for the protec-
tion of minorities and commercial relations.^ After the
fall of the ' Bolshevik ' regime, in consequence of the
capture of Buda Pesth by Roumanian troops, terms of
peace are presented to Hungary.
At the moment when this volume goes to press,^ the
Treaty of Peace Avith Grermany has been ratified, and
has come into force,^ between all the Principal AUied
and Associated Powers (except the United States of
America), a number of other Allied Powers, and Grermany.
The Treaties of Peace with Austria and Bulgaria have
not yet come into force. The Treaties of Peace with
Hungary and Turkey still await signature. The
Turkish Treaty is to allocate Thrace, open the
Bosphorus and the Dardanelles, and inaugurate a
settlement of the Middle East. Outstanding, among
other matters, are: the future of the territories formerly
constituting the Russian Empire, the boundaries between
Italy and the Serb-Croat-Slovene State, the allocation
of Fiume, and the future of Albania and Montenegro.
§ 51. It is the task of history, not only to show how Seven
things have grown in the past, but also to extract a „£ ti,°"'
moral for the future out of the events of the past. Seven ^^^^
morals can be said to be deduced from the history of Law of
the development of the Law of Nations : * °°^"
(1) The first and principal moral is that a Law of
Nations can exist only if there be an equihbrium, a
balance of power, between the members of the Family
of Nations. If the Powers cannot keep one another
in check, no rules of law will have any force, since an
over-powerful State will naturally try to act according
to discretion and disobey the law. As there is not,
and never can be, a central pohtical authority above the
, 1 Treaty Ser. No. 6 (1920), Cmd. ' May 1920.
688. See below, § 668ft. * On January 10, 1920.
94 DEVELOPMENT OF THE LAW OF NATIONS
sovereign States that could enforce the rules of the
Law of Nations, a balance of power must prevent any
member of the Family of Nations from becoming
omnipotent. The history of the times of Louis xrv.
and Napoleon i. shows clearly the soundness of this
principle.^
And this principle is particularly of importance in
time of war. As long as only minor Powers, or a few
of the Great Powers, are at war, the fear of the beUi-
gerents that neutral States might intervene can, and to
a great extent does, prevent them from violating funda-
mental rules of International Law concerning warfare
and the relations between belligerents and neutrals.
But when, as during the World War, the Great Powers
are divided into two camps which are at war, and the
neutral States represent only a neghgible body, there is
no force which could restrain the belligerents, and
compel them to conduct their warfare within the
boundary lines of International Law. The existence
of the League of Nations makes a balance of power
not less, but all the more necessary, because an
omnipotent State could disregard the League of
Nations.
(2) The second moral is that International Law can
develop progressively only when international pohtics,
especially intervention, are made on the basis of real
State interests. Dynastic wars belong to the past, as
do interventions in favour of legitimacy. It is neither
to be feared, nor to be hoped, that they should occur
' Attention ought to be drawn to sur la TMorie de I'j^quilibre (1900) ;
the fact that, although the neoes- Kaeber, Die Idee des europauchem
sity of a balance of power is gene- OleichgewicJUs (1907) ; Dapuis, Le
rally recognised, there are some Principe d'ilquilibre el le Concert
writers of great authority who europien (1909) ; Hoijer, La Thdorie
vigorously oppose this principle, as, de VilquUibre et le Droit des Gent
for instance, Bulmerinoq, Praxis, (1917) ; Ter Meulen, Der Oedanke
Theorie und Codification des Vol- irdemationcUen Organisation (1917),
kerrechta (181i), T^p. iO-50. On the pp. 38-60. See also below, § 136 n.
principle itself see Donnadieu, Esaa^
LAW OF NATIONS AFTEE GEOTIUS 95
again in the future. But if they did, they would hamper
the development of the Law of Nations in the future as
they have done in the past.
(3) The third moral is that the progress of Inter-
national Law is intimately connected with the victory
everywhere of constitutional government over auto-
cratic government, or, what is the same thing, of demo-
cracy over autocracy. Autocratic government, not
being responsible to the nation it dominates, has a
tendency to base the external poMcy of the State, just
as much as its internal policy, on brute force and
intrigue ; whereas constitutional government cannot
help basing both its external and its internal poUcy
ultimately on the consent of the governed. And
although it is not at all to be taken for granted that
democracy will always and everjrwhere stand for inter-
national right and justice, so much is certain, that it
excludes a pohcy of personal aggrandisement and in-
satiable territorial expansion, which in the past has
been the cause of many wars.
(4) The fourth moral is that the principle of nation-
ahty is of such force that it is fruitless to try to stop its
victory. Wherever a community of many milhons of
individuals, who are bound together by the same blood,
language, and interests, become so powerful that they
think it necessary to have a State of their own, in which
they can Hve according to their own ideals, and can
build up a national civihsation, they will certainly get
that State sooner or later. What international poUtics
can, and should do, is to enforce the rule that minorities
of individuals of another race shall not be outside the
law, but shall be treated on equal terms with the
majority.! States embracing a population of several
nationahties can exist and will always exist, as many
examples show.
1 See below, § 568A. '
96 DEVELOPMENT OF THE LAW OF NATIONS
(5) The fifth moral is that every progress in the
development of International Law wants due time to
ripen. Although one must hope that the time will
come when war will entirely disappear, there is no
possibihty of seeing this hope realised in our time. The
first necessities of an eternal peace are that the surface
of the earth should be shared between States of the
same standard of civihsation, and that the moral ideas
of the governing classes in all the States of the world
should undergo such an alteration and progressive
development as would create the conviction that arbitral
awards and decisions of courts of justice are alone
adequate means for the settlement of international
differences. Eternal peace is an ideal, and in the very
term ' ideal ' is involved the conviction of the impossi-
bihty of its realisation in the present, although it is a
duty to aim constantly at such reahsation. The Per-
manent Court of Arbitration at the Hague, established
by the Hague Peace Conference of 1899, is an institu-
tion that can bring us nearer to such realisation than
ever could have been hoped. And codification of
parts of the Law of Nations, following the codification
of the rules regarding land warfare, will in due time
arrive, and will make the legal basis of international
intercourse firmer, broader, and more manifest than
before.^
(6) The sixth moral is that the progress of Inter-
national Law depends to a great extent upon whether
the legal school of international jurists prevails over
the diplomatic school.^ The legal school desires Inter-
national Law to develop more or less on the lines of
Municipal Law, aiming at the codification of firm, deci-
* See Oppenheim, Die Zukwnft better denomination. They must,
dis Volherrechtt (1911), where some however, not be confounded with the
progressive steps are discussed which three schools of the ' Naturalists,'
the future may realise. ' Positiviats,' and ' Grotians,' de-
' I name these schools ' diplo- tails concerning which will be given
Djatio ' and ' legal ' for want of below, §§ 55-67.
LAW OF NATIONS AFTER GROTIUS 97
sive, and unequivocal rules of International Law, and
working for the estabUshment of international courts
for the purpose of the administration of international
justice. The diplomatic school, on the other hand,
considers International Law to be, and prefers it to
remain, rather a body of elastic principles than of firm
and precise rules. The diplomatic school opposes the
establishment of international courts, because it con-
siders diplomatic settlement of international disputes,
and failing this arbitration, preferable to international
administration of justice by international courts com-
posed of permanently appointed judges. There is,
however, no doubt that international courts are
urgently needed, and that the rules of International
Law require now an authoritative interpretation and
administration such as only an international court can
supply.
(7) The seventh, and last, moral is that the progressive
development of International Law depends chiefly upon
the standard of public morahty on the one hand, and,
on the other, upon economic interests. The higher the
standard of pubhc morahty rises, the more will Inter-
national Law progress. And the more important inter-
national economic interests grow, the more International
Law wiU grow. For, looked upon from a certain stand-
point. International Law is, just like Municipal Law, a
product of moral and of economic factors, and at the
same time the basis for a favourable development of
moral and economic interests. This being an indis-
putable fact, it may, therefore, fearlessly be maintained
that an inameasurable progress is guaranteed to Inter-
national Law, since there are eternal moral and economic
factors working in its favour.
VOL. 1.
98 DEVELOMCEJiT OF THE LAW OF KATIOJfS
m
THE SCIEXCE OF THE LAW OF KATIOX3
liiillumre, L Preuoe to the fii^ eiWtinn — I^wrenee, !§ 22-29 — Manmiig,
pp. 21-65— Halleek, i. pp. 14, IS. 22, 25, 29, 34, 4S— Walker, flMtoy,
i. pp. 203-337, and The Science of Iwtermatiomal Lam llsSS;, /iiiia —
Tkylor, g 37-48— Wheaton, g 4-13— Herdiey, Nos. 54-62 and 86—
RiTier in HeUbemdorf, i. pp. 395-523 — JTjb, L pp. 224-351 — MaHem.
L M S4^38— FSore, L Nos. 53-S.S. 1&4-1S5, 340-272— 0»Ho, L ppu 27-34,
45-46, 51-55, 61-63, 70-73, 101-137— Bonfils, Kos. 147-153— Se^a^Kt,
Nos. 28-35— Unmann, § 18— KaItenblMl^ Die Yoiiai^ar diet Hmgo
QrofiHM • 1S4S)— HoDand, Stadieg, pp. 1-58, 16S-175— WesUake, i'lipers,
pp. 23-77 — ^Wazd, Emqmrg imto tie Fomdalitm and Hislory of tie Lam
of Nalkma, 2 -rok. (1795) — ^Beddie, Smqmria ra Jafenutioaai hmt,
2)ad ed., ISol, pp. i?7-108— Kjs, Xe Droit de. la Owerre et Ut Pieejutwt
de Grotius (1882), Xaei poor ierrvr A tHutoin . . du Droit iater-
wOicmai em AngUterre (1888), Le* Origimesdu Droit imtermatiomal (189^
Le Droit dea Gtau et le* Amdeas JnrigcoiuaUeg f^pagmoU (1914), and m
A.J., vi. (1912.. pp. 1-279— Wlieabm, HiOaire dei Progra du Droi «s
Gems em Evuvfe (1841)— Figgis, JVm Germ to Grotius (1907)— Vander-
pool, Le Droit de Guerre d^apris U» ThealogieaM et la Chmoiaeteg dm
Mogem. Age (1911) — ^Focbsini, La Dottrima aaumiea dd DiriOo ddia
Guerra da 8. AgotSimo i Babiazar tPAyala (1912) — O^enbom in A. J.,
L (1908), pp. 313-356— Pollock in Tie Cambridge Moderm Hietarg,
TuL xiL (1910), pp. 703-729— Xts in R.I., 2iid Ser. xiv. (1912), pp. 360,
491, 614, and xn. (1914), pp. 245-2S6— See also tbe MHicgniplos
ammeiated below in § 61.
Tote- § 52. The science of the modeni law of Nations
^^^°* commences from Grotius' work, De Jure BeUi ac Pads,
IQni Hi., because in it a fairly complete system * of
International Law was for the first tim^e built up as
an independent branch of the science of law. Bnt
there were many ■writers before Grotias who wrote on
special parts of the law of Nations. They are therefore
commonly called ' Forerunners of Grotins.' The most
important of these f oreronneES .are the following : (1)
L^nano, Professor of Law in the Uniyeiaity of Bologna,
who wrote in 1360 his book, De Bdlo, de BepresaUis, et
de Dudlo, which was, however, not panted before 1477 ; *
' For a good ar^ilTss of the work of Intematiomal Lam, ^^y Hnnand,
fif Grotins, see W.Llker, Hittarg, pp. together with an KngKA tianslatian
2*4^29. by BrieHy (1917).
? Newlr edited in Scott's Qa-stia
SCIENCE OP THE LAW OP NATIONS 99
(2) Belli (1502-1575), an ItaMan jurist and statesman,
who publislied in 1563 his book, De Re militari et de Bdlo ;
(3) Brunus (1491-1563), a German jurist, who published
in 1548 his book, De Legationibm ; (4) Victoria (1480-
1546), professor in the University of Salamanca, whose
Rdectiones theologicae,^ which partly deal with the
Law of War, were published after his death in 1557 ; (5)
Ayala (1548-1584), of Spanish descent but bom in
Antwerp, a miUtary judge in the army of Alexandro
Famese, the Prince of Parma. He pubUshed in 1582
his book, De Jure et Ojffmis hdlicis et Disdflina militari ; ^
(6) Suarez (1548-1617), a Spanish Jesuit and professor
at Coimbra, who published in 1612 his Tractatus de
Legibus ac Deo legislatore, in which (ii. c. 19, n. 8) for
the first time the attempt is made to found a law between
the States on the fact that they form a community of
States ; (7) GentUis (1552-1608), an Itahan jurist, who
became Professor of Civil Law in Oxford. He pub-
lished in 1585 his work, De Legationibus, in 1588 and
1589 his Commentationes de Jure Belli, and in 1598 an
enlarged work on the same matter imder the title, De
Jure Belli, libri tres? lHaAdvocatio Hispanicawas edited,
after his death, in 1613 by his brother Scipio. Grentilis'
book, De Jure Belli, supphes, as Professor Holland shows,
the model and the framework of the first and third
book of Grotius' De Jure Belli ac Pads. 'The first
step ' — Holland rightly says — ' towards making Inter-
' See details in Holland, Stvdiea, Ayala, see Nys in S.I., 2nd Ser. xv.
pp. 51-52, and the analysis in Walker, (1913), pp. 225-239.
History, pp. 215-229. The parts ' Re-edited in 1877 by Holland,
dealing with the Law of War, On Gentilis, see Holland, Studies,
namely, De Jndit et de Jure Belli pp. 1-39.; Westlake, Papers, pp. 33-
Setectionet, were re-edited in 1917 36 ; Walker, Hittory, i. pp. 249-277 ;
by Nys in Scott's Olassio of Inter- Thamm, Albericus OenUUit wnd seme
national Law, with an English trans- Bedeviungfwr das Vollcerrecht (1896) ;
lation by Bate. Phillipson in the JowmcU of the
Society of Comparative Legislation,
' Newly edited in Scott's Clataiea New Ser. xii. (1912), pp. 52-80 ;
of International Law, by West- Balch in 4..^., v. (1911), pp. 665-679 ;
lake, together with an English Abbot in A.J., i. (1916), pp. 737-
translation by Bate (1912). On 748.
100 DEVELOPMENT OP THE LAW OP NATIONS
national Law what it is was taken, not by Grotius, but
by Gentilis.'
Grotius. § 53. Although Grotius owes much to Gentilis, he
is nevertheless the greater of the two, and bears by
right the title of ' Father of the Law of Nations.' Hugo
Grotius ^ was born at Delft in Holland in 1583. He
was from his earliest childhood known as a ' wondrous
child' on account of his marvellous intellectual gifts
and talents. He began to study law at Leyden when
only eleven years old, and at the age of fifteen he took
the degree of Doctor of Laws at Orleans in France,
He acquired a reputation, not only as a jurist, but also
as a Latin poet and a philologist. He first practised
as a lawyer, but afterwards took to pohtics and became
involved in poUtical and rehgious quarrels which led to
his arrest in 1618 and condemnation to prison for life.
In 1621, however, he succeeded in escaping from prison,
and went tb live for ten years in France. In 1634 he
entered into the service of Sweden and became Swedish
Minister in Paris, He died in 1645 at Rostock in
Germany on his way home from Sweden, whither he
had gone to tender his resignation.
Even before he had the intention of writing a book
on the Law of Nations, Grotius took an interest ia
matters international. For in 1609, when only twenty-
four years old, he published — anonjmiously at first — a
short treatise under the title Mare lihetum, in which he
contended that the open sea could not be the property
of any State, whereas the contrary opinion was gene-
rally prevalent. 2 But it was not until fourteen years
later that Grotius began, during his exile in France, to
^ See Vreeland, Hiigo Grotius as we know now — the twelfth chapter
i(1917) ; and in A.J., xi. (1917), pp. of the work i)e /ttrc Praedoe, written
580-606. in 1604, but never published by
Grotius ; it was not printed till 1868.
' See details with regard to the See below, § 250. A new edition by
controversy concerning the freedom J. B. Scott, together with an English
of the open sea below, §§ 248-250. translation by Magoffin, appeared in
Grotius' treatise, Jfore Uherum, is — New York (1917).
SCIENCE OF THE LAW OF NATIONS 101
write his De Jure Belli etc Pads, libri in., which was
published, after a further two years, in 1625, and of
which it has' rightly been maintained that no other
book, with the single exception of the Bible, has ever
exercised a similar influence upon human minds and
matters. The whole development of the modern Law
of Nations itself, as well as that of the science of the
Law of Nations, takes root from this for ever famous
book. Grotius' intention was originally to write a
treatise on the Law of War, since the cruelties and law-
lessness of warfare of his time incited him to the work.
But thorough investigation into the matter led him
further, and thus he produced a system of the Law of
Nature and Nations. In the introduction he speaks of
many of the authors before him, and he especially
quotes Ayala and GentiHs. Yet, although he recog-
nises their influence upon his work, he is nevertheless
aware that his system is fundamentally different from
those of his forerunners. There was in truth nothing
original in Grotius' start from the Law of Nature for
the purpose of deducing therefrom rules of a Law of
Nations. Other writers before his time, and in particular
Gentihs, had founded their works upon it. But nobody
before him had done it in such a masterly way and with
such a fehcitous hand. And it is on this account that
Grotius bears not only, as already mentioned, the title
of ' Father of the Law of Nations,' but also that of
' Father of the Law of Nature,'
Grotius, as a child of his time, could not help starting
from the Law of Nature, since his intention was to find
such rules of a Law of Nations as were eternal, un-
changeable, and independent of the special consent of
the single States. Long before Grotius, the opinion was
generally prevalent that above the positive law, which
had grown up by custom or by legislation of a State,
there was in existence another law which had its roots
102 DEVELOPMENT OP THE LAW OF NATIONS
in human reason, and which could therefore be dis-
covered without any knowledge of positive law. This
law of reason was called Law of Nature or Natural Law.
But the system of the Law of Nature which Grotius
built up, and from which he started when he commenced
to build up the Law of Nations, became the most im-
portant and gained the greatest influence, so that
Grotius appeared to posterity as the Father of the Law
of Nature as well as that of the Law of Nations.^
Whatever we may nowadays think of this Law of
Nature, the fact remains unshaken that for more than
two hundred years after Grotius, jurists, philosophers,
and theologians firmly beheved in it. And there is
no doubt that, but for the systems of the Law of Nature
and the doctrines of its prophets, the modern Consti-
tutional Law and the modern Law of |Nations would
not be what they actually are. The Law of Nature
supphed the crutches with whose help history has
taught mankind to walk out of the institutions of the
Middle Ages into those of modern times. The Inodern
Law of Nations in particular owes its very existence ^ to
the theory of the Law of Nature. Grotius did not deny
that there already existed in his time a good many
customary rules for the international conduct of the
States, but he expressly kept them apart from those
rules which he considered the outcome of the Law of
Nature. He distinguishes, therefore, between the Jus
Gentium, the customary Law of Nations — he calls it
Jus voluntarium, voluntary Law — and the Ju^ Naturae,
concerning the international relations of the States,
afterwards called the natural Law of Nations. The bulk
of Grotius' interest is concentrated upon the natural
' The 'new' Law of Nature — see " See Pollock in the Journal
Charmant, La Renaissance du Droit of the Society of Gomparative
naturel (1910) — is something quite LegiskUion, New Ser. iii. (1901),
different from the Law of Nature p. 206.
taught by Grotius and his followers.
SCIENCE OF THE LAW OP NATIONS 103
Law of Nations, since he considered the voluntary of
minor importance. But, nevertheless, he does not quite
neglect the voluntary Law of Nations. Although he
mainly and chiefly lays down the rules of the
natural Law of Nations, he always mentions also
voluntary rules concerning the different matters.
Grotius' influence was soon enormous, and reached
over the whole of Europe. His book^ went through
more than forty-five editions, and many translations
have been pubHshed.
§ 54. But the modern Law of Nations has another, Zouohe.
though minor, founder besides Grotius, and this is an
Enghshman, Richard Zouche^ (1590-1660), Professor
of Civil Law at Oxford, and a Judge of the Admiralty
Court. A prohfic writer, the book through which he
acquired the title of ' Second founder of the Law of
Nations,' appeared in 1650, and bears the title : Juris
et Jvdicii fecialis, sive Juris inter Gentes, et Quaesticmum
de eodem Explicatio, qua, quae ad Pacem et Bellum inter
diversos Principes aut Pofulos spectant, ex Praecipuis
historico Jure peritis exhihentur? This httle book has
rightly been called the first manual of the positive Law
of Nations. The standpoint of Zouche is totally different
from that of Grotius, in so far as, according to him, the
customary Law of Nations is the most important part
of that law, although, as a child of his time, he does not
at all deny the existence of a natural Law of Nations.
It must be specially mentioned that Zouche was the first
who used the term. Jus inter Gerties, for that new branch
of law. Grotius knew very well, and says, that the Law
of Nations is a law between the States, but he called it
Jus Gentium, and it is due to his influence that xmtil
' See Rivier in HoUzendorff, i. p. lotion, New Ser. ix. (1908), pp.
412. The last English translation is 281-304.
that of 1854 by William Whewell. ' Newly edited in Scott's Classics
of International Law, by Holland,
' See Phillipson in the Jowmal of together with an English trans-
the Society of Comparative Legis- lation by Brierly (1911).
ralists.
104 DEVELOPMENT OP THE LAW OF NATIONS
Bentham nobody called the Law of Nations Inter-
national Law.
The distinction between the natural Law of Nations,
chiefly treated by Grotius, and the customary or volun-
tary Law of Nations, chiefly treated by Zouche,^ gave
rise in the seventeenth and eighteenth centuries to
three different schools ^ of writers on the Law of Nations
— namely, the ' Naturahsts,' the ' Positivists,' and the
' Grotians.'
The Natu- § 55. ' NaturaHsts,' or ' Deniers of the Law of Nations,'
is the appellation of those writers who deny that there
is any positive Law of Nations whatever as the out-
come of custom or treaties, and who maintain that all
Law of Nations is only a part of the Law of Nature.
The leader of the Naturahsts is Samuel Pufendorf^
(1632-1694), who occupied the first chair which was
founded for the Law of Nature and Nations at a uni-
versity— namely, that at Heidelberg. Among the many
books written by Pufendorf, three are of importance
for the science of International Law : (1) Ehmenta
Jurisprvdentiae universalis, 1666 ; (2) De Jure Naturae
et Gentium, 1672 ; (3) De Officio Hominis et Civis juxta
Legem naturalem, 1673. Starting from the assertion of
Hobbes, De Give, xiv. 4, that natural law is to be
divided into natural law of individuals and of States,
and that the latter is the Law of Nations, Pufendorf *
adds that outside this natural Law of Nations no
^ It should be mentioned that ment of maritime International Law.
already before Zouohe, another See Wynne, Life of Sir Leoline
Englishman,. John Selden, in his Jenhim, 2 vols. (1740).
De Jure natviraZi et Gentiwm tecun- ' These three schools of writers
dum DiacipUnam Ebraeorwm (1640), must not be confounded with the
recognised the importance of the ' division of the present international
positive Law of Nations. The sue- jurists into the diplomatic and legal
cessor of Zouohe as a Judge of the schools; see above, § 51, No. 6.
Admiralty Court, Sir Leoline Jenkins ' See Phillipson in the Jourmd of
(1625-1684) ought also to be men- the Society of Comparative Legiala-
tioned. His opinions concerning tion, New Ser. xii. (1912), pp. 233-
questions of maritime law, and in 265.
particular prize law, were of the * De Jure Naturae [et Oentium, ii.
greatest importance for the develop- o. 3, § 22.
SCIENCE OB" THE LAW OF NATIONS 105
voluntary or positive Law of Nations exists which has
the force of real law {quod quidem legis frofrie dictae vim
habeat, quae gentes tamquam a superiore profecta stringat).
The most celebrated follower of Pufendorf is the
German philosopher Christian Thomasius (1655-1728),
who pubhshed in 1688 }m Institutiones Jurisprvdentiae,
and in 1705 his Fundamenta Juris Naturae et Gentium.
Of Bnghsh NaturaUsts may be mentioned Francis
Hutcheson (System of Moral Philosophy, 1755), and
Thomas Kutherford (Institutes of Natural Law ; being
the Substance of a Course of Lectures on Grrotius, read
in St. John's College, Cambridge, 2 vols. 1754-1756).
Jean Barbeyrac (1674-1744), the learned French trans-
lator and commentator on the works of Grotius, Pufen-
dorf, and others, and, further, Jean Jacques Burlamaqui
(1694-1748), a native of Geneva, who wrote Principes
du Droit de la Nature et des Gens, ought Ukewise to be
mentioned.
§ 56. The ' Positivists ' are the antipodes of the The Posi-
Naturahsts. They include all those writers who, in*^^'^*^-
contradistinction to Hobbes and Pufendorf, not only
defend the existence of a positive Law of Nations as
the outcome of custom or international treaties, but
consider it more important than the natural Law of
Nations, the very existence of which some of the Posi-
tivists deny, thus going beyond Zouche. The positive
writers had not much influence in the seventeenth
century, during which the NaturaKsts and the Grotians
carried the day, but their time came in the eighteenth
century.
Of seventeenth-century writers, the Germans Rachel
and Textor must be mentioned. Rachel pubhshed in
1676 his two dissertations, De Jure Naturae et Gentium,^
in which he defines the Law of Nations as the law to
' Newly edited in Scott's Classics together with an English transla-
df International Law, by von Bar, tion by Bate (1916).
106 DEVELOPMENT OF THE LAW OF NATIONS
which a pluraHty of free States are subjected, and which
comes into existence through tacit or express consent
of these States {Dissertatio altera, § xvi., Jus igitur
geniium est jus plurium liberarum gentium facto sive
placito expressim aut tacite initum, quo utilitalis gratia
sibi invicem ohligantur). Textor pubMshed in 1680 his
Synopsis Juris Gentium.^ According to him, th.e Law of
Nations is founded on custom and express agreements.
In the eighteenth century the leading Positivists,
Bynkershoek, Moser, and Martens, gained an enormous
influence,
GorneUus van Bynkershoek ^ (1673-1743), a celebrated
Dutch jurist, never wrote a treatise on tbe Law of
Nations, but gained fame through three books deal-
ing with different parts of this law. He pubUshed in
1702 De Dominio Maris, in 1721 De Foro Legatorum,
in 1737 Quaestionum Juris pvhlici, libri ii. According
to Bynkershoek the basis of the Law of Nations is the
common consent of the nations which finds its expres-
sion either in international custom or in international
treaties.
Johann Jakob Moser (1701-1785), a German Pro-
fessor of Law, published many books concerning the
Law of Nations, of which three must be mentioned :
(1) Grundsdtze des jetzt iMichen Volkerrechts in Friedens-
zeiten, 1750 ; (2) Grundsatze des jetzt iMichen Volker-
rechts in Kriegszeiten, 1752 ; (3) Versuch des neuesten
europdischen Volkerrechts in Friedens- und Kriegszeiten,
1777-1780. Moser's books are magazines of an enormous
number of facts which are of the greatest value for the
positive Law of Nations. Moser never fights against
the Naturalists, but he is totally indifferent towards the
natural Law of Nations, since to him tke Law of Nations
' Newly edited in Soott's Glassict ' See PhilUpson in the Journal of
of International Law, by von Bar, tht Society of Comparative Legittla-
together with an English transla- tion. New Ser. ix. (1908), pp. 27-
tion by Bate (1916). 49.
SCIENCE OF THE LAW OF NATIONS 107
is positive law only, and based on international custom
and treaties.
Georg Friedrich von Martens (1756-1821), Professor
of Law in the University of Gottingen, also published
many books concerning the Law of Nations. The most
important is his Precis du Droit des Gens moderne de
I'Europe, pubhshed in 1789, of which Wilham Cobbett
pubhshed in 1795 at Philadelphia an Enghsh transla-
tion, and of which as late as 1864 appeared a new edition
at Paris with notes by Charles Verge. Martens began
the celebrated collection of treaties which goes under
the title, Martens, Recueil de TraitSs, and is continued
to our days.i The influence of Martens was great, and
even at the present time is considerable. He is not an
exclusive Positivist, since he does not deny the exist-
ence of natural Law of Nations, and since he sometimes
refers to the latter in case he finds a gap in the positive
Law of Nations. But his interest is in the positive
Law of Nations, which he builds up historically on inter-
national custom and treaties.
§ 57. The ' Grotians ' stand midway between the The
Naturalists and the Positivists. They keep up the dis-
tinction of Grotius between the natural and the volun-
tary Law of Nations, but, in contradistinction to Grotius,
they consider the positive or voluntary of equal import-
ance to the natural, and they devote, therefore, their
interest to both ahke. Grotius' influence was so
enormous that the majority of the authors of the seven-
teenth and eighteenth centuries were Grotians, but
only two of them have acquired a European reputation
—namely, Wolff and Vattel.
Christian Wolfi (1679-1754), a German philosopher
who was first Professor of Mathematics and Philosophy
* Georg Friedrioh von Martens is author of the Causes ciUhret du Droit
not to be confounded with his des Gens and of the Ouide diploma-
nephew Charles de Martens, the tique.
108 DEVELOPMENT OP THE LAW OF NATIONS
in the Universities of Halle and Marburg and afterwards
returned to Halle as Professor of the Law of Nature
and Nations, was seventy years of age when, in 1749,
he pubhshed his Jus Gentium Methodo scientifica pertrac-
tatum. In 1750 followed his Institutiones Juris Naturae
et Gentium. Wolff's conception of the Law of Nations
is influenced by his conception of the Civitas Gentium
maxima. The fact that there is a Family of Nations in
existence is strained by Wolff into the doctrine that
the totahty of the States form a world-State above
the component member-States, the so-called Civitas
Gentium mMximxt. He distinguishes four different kinds
of Law of Nations — namely, the natural, the voluntary,
the customary, and that which is expressly created by
treaties. The latter two kinds are alterable, and have
force only between those single States between which
custom and treaties have created them. But the
natural and the voluntary Law of Nations are both eternal,
unchangeable, and universally binding upon all the States.
In contradistinction to Grotius, who calls the customary
Law of Nations 'voluntary,' Wolff names 'voluntary'
those rules of the Law of Nations which are, according
to his opinion, tacitly imposed by the Civitas Gentium
maxima, the world-State, upon the member-States.
Emerich de Vattel ^ (1714-1767), a Swiss from Neu-
chsltel, who entered into the service of Saxony and
became her Minister at Berne, did not in the main intend
any original work, but undertook the task of introducing
Wolff's teachings concerning the Law of Nations into
the courts of Europe and to the diplomatists. He
pubhshed in 1758 his work, Le Droit des Gens, ou Prindpes
de la Loi naturelle applique's a la Conduite et awe Affaires
des Nations et des Souverains.^ But it must be specially
* See Montmorency in the Journal ' Newly edited in Scott's Classics
of the Society of Comparative Legis- of IniemationaZ Law, by Lapradelle,
lotion, New Ser. x. (1909), pp. 17- together with an English translation
39. by Fenwiok (1916).
SCIENCE OF THE LAW OF NATIONS 109
mentioned that Vattel expressly rejects Wolff's con-
ception of the Civitas Gentium maxima in the preface to
his book. Numerous editions of Vattefs book have
appeared, and as late as 1863 Pradier-Fodere re-edited
it at Paris. An Enghsh translation by Chitty appeared
in 1834, and went through several editions. His influ-
ence was very great, and in diplomatic circles his book
still enjoys an unshaken authority.
§ 58. Some details concerning the three schools of Treatises
the Naturahsts, Positivists, and Grotians were neces- Nine-
sary, because these schools are still in existence. I do andTwen-
not, however, intend to give a list of writers on special tieth Cen-
subjects, and the following Kst of treatises comprises
the more important ones only.
(1) Beitish Treatises
William Oke Manning : Commentaries on the Law of Nations,
1839 ; new ed. by Sheldon Amos, 1875.
Archer Poison : Principles of the Law of Nations, 1848 ; 2nd
ed. 1853.
Richard Wildman : Institutes of International Law, 2 vols.
1849-1850.
Sir Robert PhilKmore : Commentaries upon International Law,
4 vols. 1854-1861 ; 3rd ed. 1879-1889.
Sir Travers Twiss : The Law of Nations, etc., 2 vols. 1861-1863 ;
2nd ed., vol; i. (Peace) 1884, vol. ii. (War) 1875 ; French
translation, 1887-1889.
Sheldon Amos : Lectures on International Law, 1874.
Sir Edward Shepherd Creasy : First Platform of International
Law, 1876.
William Edward Hall : A Treatise on International Law, 1880 ;
7th ed. 1917 (by Pearce Higgins).
Sir Henry Sumner Maine : International Law, 1883 ; 2nd ed.
1894 (Whewell lectures, not a treatise).
James Lorimer : The Institutes of the Law of Nations, 2"vols.
1883-1884 ; French translation by Nys, 1885.
Leone Levi : International Law, 1887.
Thomas Jose/ph Lawrence : The Principles of International Law,
1895 ; 4th ed. 1910.
110 DEVELOPMENT OF THE LAW OF NATIONS
Thomas Alfred Walker : A Manual of Public International Law,
1895.
Sir Sheraton Baker : First Steps in International Law, 1899.
F. E, Smith : International Law, 1900 ; 5tli ed. 1918 (by Cole-
man Phillipson).
John Westlake : International Law, vol. i. (Peace) 1904, vol. ii.
(War) 1907 ; 2nd ed., vol. i. 1910, vol. ii. 1913.
L. Oppenheim : International Law, vol. i. (Peace) 1905, vol. ii.
(War), 1906 ; 2nd ed., vols. i. and ii. 1912.
(2) North Ameeioaij Treatises
James Kent : Commentary on International Law, 1826 ; English
edition by Abdy, 1878.
Henry Wheaton : Elements of International Law, 1836 ; 8th
American ed. by Dana, 1866 ; 3rd English ed. by Boyd,
1889 ; 4th English ed. by Atlay, 1904 ; 5th English ed. by
Coleman PhiUipson, 1916.
Theodore D. Woolsey : Introduction to the Study of International
Law, 1860 ; 6th ed. by Th. S. Woolsey, 1891.
Henry W. Halleck : International Law, 2 vols. 1861 ; 4th Enghsh
ed. by Sir Sherston Baker, 1908.
Francis Wharton : A Digest of the International Law of the
United States, 3 vols. 1886.
John N. Pomeroy : Lectures on International Law in Time of
Peace, 1886.
George B. Davis : The Elements of International Law, 1887 ;
4th ed. by Sherman, 1916.
Hannis Taylor : A Treatise on International Public Law, 1901.
George Grafton Wilson and George Fox Tucker : International
Law, 1901 ; 5th ed. 1910.
Edvnn Maxey : International Law, with illustrative cases, 1906.
John Bassett Moore : A Digest of International Law, 8 vols. 1906.
George Grafton Wilson : Handbook of International Law, 1910.
Charles H. Stockton (Admiral) : A Manual of International Law,
1911 ; also Outlines of Latemational Law, 1914.
Anws S. Hershey : The Essentials of International Law, 1912.
(3) French Treatises
Funck-Brentano et Albert Sorel : Precis du Droit des Gens, 1877 ;
2nd ed. 1894.
P. Pradier-Fodiri : Traite de Droit international public, 8 vols.
1885-1906.
SCIENCE OP THE LAW OF NATIONS 111
Alfred Chritien : Principes de Droit international public, 1893.
Henry Bonfls : Manuel de Droit international public, 1894
7th ed. by Fauchille, 1914.
Oeorges Bry : Precis elementaire de Droit international public
6th ed. 1910.
Frantz Des'pagnet : Cours d^ Droit international public, 1894
4th ed. by De Boeck, 1910.
Bobert Piiddiivre : Precis de Droit international pubUc, 2 vols
1883-1895.
A. Merignhac : Traite de Droit public international, Part i
1905 ; Part ii. 1907 ; Part, ni., vol. i. 1912.
(4) German Treatises
Theodor Schmalz : Europaisches Volkerrecht, 1817.
Julius Schmelzing : Systematischer Grundniss des praktischen
europaischen Volkerrechts, 3 vols. 1818-1820. Also Lehr-
buch des europaischen Volkerrechts, 1821.
Johann Ludmg Kluber : Droit des Gens modeme, 1819 ; German
ed. under the title of Europaisches Volkerrecht in 1821 ; last
German ed. by Morstadt in 1851, and last French ed. by
Ott in 1874.
Karl Heinrich Ludwig Poelitz : Practisches (europaisches), Vol-
kerrecht, 1823 ; 2nd ed. 1828.
Friedrich Saalfeld : Handbuch des positiven Volkerrechts, 1833.
Atigu^t Wilhelm Heffter : Das europaische Volkerrecht der Gegen-
wart, 1844 ; 8th ed. by GefiEcken, 1888 ; French transla-.
tions by Bergson in 1851 and Geffcken in 1883.
Heinrich Bernhard Oppenheim : System des Volkerrechts, 1845 ;
2nd ed. 1866.
Johann Caspar Bluntschli : Das modeme Volkerrecht der civili-
sirten Staaten als Rechtsbuch dargestellt, 1868 ; 3rd ed.
1878 ; French translation by Lardy, 5th ed. 1895.
Adolph Hartmann : Institutionen des praktischen Volkerrechts
in Friedenszeiten, 1874 ; 2nd ed. 1878.
Franz von Holtzendorff : Handbuch des Volkerrechts, 4 vols.
1885-1889. Holtzendorff is the editor and a contributor,
but there are many other contributors.
August von Bvlmerincq : Das Volkerrecht, 1887 ; 2nd ed. 1889.
Karl Oareis : Institutionen des V61kerrechts,J 1888 ; 2nd ed.
1901.
E. Vllmann : Volkerrecht, 1898 ; 2nd ed. 1908.
Franz von Liszt : Das Volkerrecht, 1898 ; 10th ed. 1915.
112 DEVELOPMENT OP THE LAW OP NATIONS
(5) iTALiAif Treatises
I/udovico Casanova : Lezioni del Diritto intemazionale, published
after the death of the author by Cabella, 1853 ; 3rd ed.,
2 vols., by Brusa, 1876.
Paaqvale Fiore : Trattato di Diritto intemazionale pubblico,
1865 ; 4th ed. in 3 vols. 1904 ; French translation of the
2nd ed. by Antoine, 1885.
Giuseppe Carnazza-Amari : Trattato sul Diritto intemazionale
di Pace, 2 vols. 1867-1875 ; French translation by Mon-
tanari-Revest, 1880-1882. Also Elementi di Diritto inter-
nazionale, 2 vols. 1866-1874.
Antonio del Bon : Instituzioni del Diritto pubblico intemazionale,
1868.
Giuseppe Sandona : Trattato di Diritto intemazionale modemo,
2 vols. 1870.
Gian Battista Fertile : Elementi di Diritto intemazionale modemo,
2 vols. 1877.
Augusto Pierantoni : Trattato di Diritto intemazionale, vol. i.
1881. (No further volume has appeared.)
Giovanni Lomonaco : Trattato di Diritto intemazionale pubbUco,
1905.
Giulio Diena : Principi di Diritto intemazionale. Parte Prima,
Diritto intemazionale pubbhco, 1908 ; 2nd ed. 1914.
G. Cavarretta : Diritto interstatuale, vol. i. 1914.
(6) Spanish and South American Treatises
Andris Bello : Principios de Derecho de Gentes (intemacional),
1832 ; last ed. in 2 vols, by SUva, 1883 (Chilian).
Jos6 Maria de Panda : Elementos del Derecho intemacionalj
pubUshed after the death of the author, 1843-1844 ; 2nd
ed. 1852 (Peravian).
Antonio Riquelme : Elementos de Derecho ptibhco intemacional,
etc. ; 2 vols. 1849.
Carlos Calvo : Le Droit international, etc. (first edition in
Spanish, following editions in French), 1868 ; 5th ed. in
6 vols. 1896 (Argentinian).
M.M.Madiedo: Tratado de Derecho de Gentes, 1874 (Colombian).
Amancio Alcorta : Curso de Derecho intemacional publico, vol. i.
1887 ; French translation by Lehr, 1887 (Argentinian).
Marquis de Olivart : Tratado y Notas de Derecho intemacional
SCIENCE OP THE LAW OF NATIONS 113
publico, 2 vols. 1887 ; 4th ed. in 4 vols. 1903-1904 ; 5th ed.
(abridged), 1 vol. 1906.
Jose Aiiigusto Moreira de Almeida : Elementos de Direito inter-
nacional publico, 1892.
Luis Gestoso y Acosta : Curso de Derecho intemacional publico,
1894 ; 2nd ed. 1898.
H. Feltner : Manual de Derecho intemacional, 2 vols. 1894.
Miguel Cruchaga : Nociones de Derecho intemacional, 1899 ;
2nd ed. 1902.
Manuel Torres Cam/pos : Elementos de Derecho intemacional
publico ; 3rd ed. 1912.
Clovis Bemlaqua : Direito publico intemacional, 2 vols. 1911
(Brazihan).
8. Pianos Suarez : Tratado de Derecho intemacional pubUco,
2 vols. 1916 (Venezuelan, although pubhshed in Madrid).
(7) Tkbatisbs of Authoes of other Nationalities
Frederick Kristian Bornemann : Forelaesninger over den positive
Folkeret, 1866 (Danish).
Friedrich von Martens : Volkerrecht, 2 vols. 1883-1886 ; a
German translation by Bergbohm of the Russian original.
A French translation by Leo in 3 vols, appeared 1883-
1887. The Russian original went through its 5th ed. in
1905.
Jan Helenus Ferguson : Manual of International Law, etc., 2 vols.
1884. The author is Dutch, but the work is written in
EngUsh.
Alphonse Rivier : Lehrbuch des Volkerrechts, 1894 ; 2nd ed.
1899, and the larger work in two vols, under the title :
Principes du Droit des Gens, 1896. The author of these
two excellent books was a French Swiss, who taught Inter-
national Law at the University of Brussels.
H. Matzen : Forelaesninger over den positive Folkeret, 1900
(Danish).
Ernest Nys: Le Droit international, 3 vols. 1904-1906; new
edition 1912. The author of this exhaustive treatise is a
Belgian jurist whose researches in the history of the science
of the Law of Nations have gained him a far-reaching reputa-
tion.^
' The first volume of Nys contains as well as monographs, and I have
in its pp. 224-351 an exhaustive enu- much pleasure in referring my
meration of all the more important readers to this learned work,
works on International Law, treatises
VOL. I. H
114 DEVELOPMENT OF THE LAW OF NATIONS
J. De Louter : Het Stellig Volkenreoht, 2 vols. 1910.
M. Papoviliev : Mejdouderjeavuo Pravo (Law of Nations), vol. i.
1914. The author of this first Bulgarian treatise on Inter-
national Law is professor in the University of Sofia.
The § 59. The science of the Law of Nations, as left by
the^Law" tlie French Eevolution, developed progressively during
?^^^^'°°Hhe nineteenth century under the influence of three
Nine- factors. The first factor was the endeavour, on the
andTwen- whole siucere, of the Powers after the Congress of Vienna
turies°^''"*° submit to the rules of the Law of Nations. The
as repre- secoud factor was the many law-making treaties which
Treatises, arose during this century. And the last, but not indeed
the least factor, was the downfall of the theory of the
Law of Nature, which after many hundreds of years
was at last shaken ofi during the second half of this
century.
When the nineteenth century opens, the three schools
of the Naturahsts, the Positivists, and the Grotians are
still in the field, but Positivism^ gains slowly and
gradually the upper hand, until at the end it maybe
said to be victorious, without, however, being omni-
potent. The most important writer ^ up to 1836 is
Kluber, who may be called a Positivist in the same
sense as Martens, for he also applies the natural Law
of Nations to fill up the gaps of the positive. Wheaton
appears in 1836 with his Elements, and, although an
American, at once attracts the attention of the whole
of Europe. He may be called a Grotian. And the
same may be maintained of Manning, whose treatise
appeared in 1839, and is the first that attempts a survey
of British practice regarding sea warfare based on the
' Austin and his followers who ' I do not intend to discuss the
hold that the rules of International merits of writers on special sub-
Law are rules of ' positive morality ' jects, and I mention only the authors
must be considered Positivists, al- of the most important treatises
though they do not agree to Inter- which are written in, or translated
national Law being real law. into, English, French, or German.
SCIENCE OP THE LAW OF NATIONS 115
judgments of Sir William Scott (Lord Stowell). Heffter,
whose book appeared in 1844, is certainly a Positivist,
although he does not absolutely deny the Law of Nature.
In exact apphcation of the juristic method, Heffter 's
book excels all former ones, and all the following authors
are in a sense standing on his shoulders. In Philhmore,
Great Britain sends in 1854 a powerful author into the
arena, who may, on the whole, be called a Positivist of
the same kind as Martens and Kliiber. Generations to
come will consult Philhmore 's volumes on account of
the vast amount of material they contain and the sound
judgment they exhibit. And the same is vahd with
regard to Sir Travers Twiss, whose first volume appeared
in 1861. Halleck's work, which appeared in the same
year, is of special importance as regards war, because
the author, who was a general in the service of the
United States, gave to this part his special attention.
The next prominent author, the Itahan Fiore, who
pubMshed his system in 1865 and may be called a Grotian,
is certainly the most prominent Itahan author, and the
latest edition of his work will for a long time to come be
consulted. Bluntschh, the celebrated Swiss-German
author, pubhshed his book in 1868 ; it must, in spite
of the world-wide fame of its author, be consulted with
caution, because it contains many rules which are not
yet recognised rules of the Law of Nations. Calvo's
work, which first appeared in 1868, contains an invalu-
able store of facts and opinions, but its juristic basis
is not very exact.
From the seventies of the nineteenth century the
influence of the downfall of the theory of the Law of
Nature becomes Adsible in the treatises on the Law of
Nations, and therefore real ' positivistic ' treatises make
their appearance. For the Positivism of Zouche,
Bynkershoek, Martens, Kliiber, Heffter, Philhmore, and
Twiss was no real Positivism, since these authors recog-
116 DEVELOPMENT OF THE LAW OF NATIONS
nised a natural Law of Nations, although they did not
make much use of it. Real Positivism must entirely
avoid a natural Law of Nations. We know nowadays
that a Law of Nature does not exist. Just as the so-
called natural philosophy had to give way to real
natural science, so the Law of Nature had to give way
to jurisprudence, or the philosophy of the positive law.
Only a positive ^ Law of Nations can be a branch of the
science of law.
The first real positive treatise known to me is Hart-
mann's Institvtionen des praktischen VolJcerrechts in
Friedenszeiten, which appeared in 1874, but is hardly
known outside Germany. In 1880 HaU's treatise
appeared, and at once won the attention of the whole
world ; it is one of the best books on the Law of Nations
that have ever been written. Lorimer, whose two
volumes appeared in 1883 and 1884, is a Naturalist
pure and simple, but his work is nevertheless of value.
The Russian Martens, whose two volumes appeared in
German and French translations in 1883-1887, and at
once put their author in the forefront of the authorities,
certainly intends to be a real Positivist, but traces of
natural law are nevertheless now and then to be found
in his book. A work of a special kind is that of Holt-
zendorfE, the first volmne of which appeared in 1885.
HoltzendorfE himself is the editor and at the same time
a contributor to the work, but there are many other
contributors, each of them dealing exhaustively with a
different part of the Law of Nations. The copious
work of ;^radier-Fodere, which also began to appear in
1885, is far from being positive, although it has its
merits. Wharton's three volmnes, which appeared in
1886, are not a treatise, but contain the international
practice of the United States. Buhnerincq's book,
' On the task and method of the the positive standpoint, see Oppen-
Ecienoe of International Law from heim in ^.<A, ii. (1908), pp. 313-356.
SCIENCE OF THE LAW OF NATIONS 117
which appealed in 1887, gives a good survey of Inter-
national Law from the positive poiat of view. In 1894
three French jurists, Bonfils, Despagnet, and PiedeU^vre,
step into the arena ; their treatises are comprehensive
and valuable, but not absolutely positive. On the
other hand, the English authors, Lawrence and Walker,
whose excellent manuals appeared ui 1895, are real
Positivists. Of the greatest value are the two volumes
of Rivier which appeared in 1896 ; they are full of
sound judgment, and wiU influence the theory and prac-
tice of International Law for a long time to come.
Liszt's short manual, which ia its first edition made its
appearance ia 1898, is positive throughout, well written,
and suggestive. Ullmann's work, which hkewise ap-
peared in its first edition in 1898, is an excellent and
comprehensive treatise which thoroughly discusses all
the more importemt problems and points from the
positive standpoint. Hannis Taylor's comprehensive
treatise, which appeared in 1901, is likewise thoroughly
positive, and so are the serviceable manuals of Wilson
and Maxey. Of great value are the two volumes of
Westlake, which appeared in 1904 and 1907 ; they
represent rather a collection of thorough monographs
than a treatise, and will have great and lasting influence.
A work of particular importance is the Digest of John
Bassett Moore, which appeared in 1906, comprises eight
volumes, and contains the international practice of the
United States in a much more exhaustive form than
the work of Wharton ; it is an invaluable work which
must be consulted on every subject. The same is valid
with regard to the three volumes of Nys, who may be
characterised as a Grotian, and whose work is fuU of
information on the historical and Uterary side of the
problems. Merignhac's work, the first part of which
appeared in 1905, is a French treatise of value, but it is
not yet completed. Diena's work, which first appeared
118 DEVELOPMENT OF THE LAW OF NATIONS
in 1908, is an excellent short Italian manual. Hershey's
volume is thoroughly positive, and is very valuable on
account of its notes, which survey the Uterature grown
up aroimd many controverted questions ; it appeared
in 1912. Stockton's Outlines, which appeared in 1914,
is a thoroughly positive short treatise.
§ 60. COLLECTIONS OF TEEATIES i
(1) Genebal CoiiEcnoNS
Leibnitz : Codex Itiris Gientiiini diplomaticus (1693) ; Maatissa
Codids luris Gtentiniii diplomatici (1700).
BenuarA : Recueil des Traites, etc., 4 vols. (1700).
Rymer : Foedera etc. inter Beges Angliae et alios quosvis Im-
peratoies . . . ab Anno 1101 ad nostia usque Tempoia
habita aut tractata, 20 vols. 1704-1718 (contains documents
from 1101-1654).
Dumont : Corps universel diplomatique, etc., 8 vols. (1726-1731).
Eousset : Supplement au Corps universel diplomatique de
Dumont, 5 vols. (1739).
Schmauss : Corpus luris Gentium academicum (1730).
WeTick : Codex luris Gentium recentissimi, 3 vols. (1781, 1786,
1795).
Martens : Recueil de Traites d' Alliance, etc., 8 vols. (1791-1801) ;
Nouveau Becueil de Traites d' Alliance, etc., 16 vols. (1817-
1842) ; Nouveaux Supplemens au Recueil de Traites et
d'autres Actes remarquables, etc., 3 vols. (1839-1842) ; Nou-
veau Recueil general de Traites, Conventions et autres Actes
remarquables, etc., 20 vols. (1843-1875) ; Nouveau RecueU
g^6ral de Traites et autres Actes relatifs aux Rapports de
Droit international ; Deuxieme S6rie, 35 vols. (1876-1908) ;
Nouveau Recueil general de Traites et autres Actes relatife
aux Rapports de Droit international, Troiaeme Serie, vol.
i. 1909, continued up to date. Present editor, Heinrich
Triepel, professor in the University of Berlin in Gfermany.
Ohillany : Diplomatisches Handbuch, 3 vols. (1855-1868).
Martens el Cussy : Recueil manuel, etc., 7 vols. (1846-1857) ;
continuation by GefEcken, 3 vols. (1885-1888).
'■ Owing to the World War, some of the current collections of treaties are
several volumes in arrear.
SCIENOE OF THE LAW OP NATIONS 119
British and Foreign State Papers (Hertslet) : vol. i. 1841, con-
tinued up to date, one volume yBarly.
Das Staatsarchiv : Sammlung der offidellen Actenstiicke zur
Geschichte der Gegenwart, vol. i. 1861, continued up to
date, one volume yearly.
Archives diplomatiques : EecueU mensuel de Diplomatic,
d'histoire et de Droit international. First and Second Series,
1861-1900, Third Series from 1901 continued up to date
(4 vols, yearly).
Recueil international des Traites du XIX^ Siecle : Edited by
Descamps, Renault, and Basdevant, vol. i. 1915 (more
vols, are to appear).
BecueH international des Traites du XX^ Siecle : Edited by
Descamps and Benault since 1902.
Strupp : Urkunden zur Geschichte des Volkerrechts, 2 vols. (1911)
Albin : Les grands Traites politiques depuis 1815 jusqu'4 nos
Jours. 2nd ed. 1912.
(2) CJoiXEcnoNS OF English Treaties
JenJdtison : Collection of all the Treaties, etc., between Great
Britain and other Powers from 1648 to 1783, 3 vols. (1785).
Chalmers : A Collection of Maritime Treaties of Great Britain
and other Powers, 2 vols. (1790).
Hertslet : Collection of Treaties and Conventions between Great
Britain and other Powers, so far as they relate to Com-
merce and Navigation, etc. (vol. i. 1820, continued to date).
Treaty Series : vol. i. 1892, and a volume every year.
(3) COLLECTnONS OF AMBKICAlf TREATIES
MaUoy : Treaties, Conventions, International Acts, Protocols
and Agreements between the United States and other
Powers from 1776 to 1909.
Calvo : Becueil historique complet des Traites de tons les Etats
de I'Amerique Latine depuis 1493 jusqu'a 1869. (There
are also official collections of treaties of Argentina, Brazil,
Colombia, Costa Rica, Guatemala, and Peru.)
(4) Collections op French and Spanish Treaties
De Clercq : Recueil des Traites, etc., conclus par La France avec
Puissances etrang&es depuis 1713 jusqu'll 1904.
OUmrt : Coleccion de Tratados de Espana desde el Iteinado de
Isabel n. hasta nuestros Dias (1911).
120 DEVELOPMENT OF THE LAW OF NATIONS
§ 61. BIBLIOGRAPHIES
Ompteda : Litteratur des gesammten Volkerrechts, 2 vols. (1785).
Kamptz : Neue litteratur des Volkerrechts seit 1784 (1817).
KUiber : Droit des Gens modeme de 1' Europe (Appendix) (1819).
Miruss : Das europaische Gesandschaftsrecht, vol. ii. (1847).
Mohl : Geschichte und literatur des Staatswissenschaften, vol. i.
pp. 337-475 (1855).
Woolsey : Introduction to the Study of International Law (6th
ed. 1891), Appendix I.
Bivier : pp. 393-523 of vol. i. of HoltzendorfE's Handbuch des
, Volkerrechts (1885).
Stoerk : Die Litteratur des intemationalen Rechts von 1884-
1894 (1896).
Olivart : Catalogue d'une Bibliothdque de Droit international
(1899).
Nys : Le Droit international, 2nd ed. vol. i. (1912), pp. 224-351.
Exhaustive current Bibliographies are supphed by each number
of the American Journal of International Law.
§ 62. PERIODICALS i
Revue de Droit international et de Legislation compar6e. It
has appeared in Brussels since 1869, one volume yearly.
Present editor, Edouard RoUn.
Revue g6nerale de Droit international pubhc. It has appeared
in Paris since 1894, one volume yearly. Founder and
present editor, Paul FauchiUe.
Zeitschrift fiir Internationales Recht. It has appeared in Munich
and Leipzig since 1891, one volume yearly. Present editor,
Theodor Niemeyer.
Annuaire de I'lnstitut de Droit international, vol. i. 1877. A
volume appears after each meeting of the Institute. The
Institut Am^ricain de Droit international also pubUshes
a volume yearly since 1916.
Kokusaiho-Zasshi, the Japanese International Law Review.
It has appeared in Tokio since 1903.
Revista de Derecho internacional y Pohtica exterior. It has
appeared in Madrid since 1905, one volume yearly. Editor,
Marquis de Olivart.
' During the World War, some of oation, or changed editors. Details
the periodicals in enemy or occupied are not at present available,
territory may have suspended publi-
SCIENCE OF THE LAW OF NATIONS 121
Bi^ta di Diiitto intemazionale. It has appeared in Borne
since 1906, one volume yearly. Editors, D. Anzdlotti and
A. Eicci-Busatti.
Zeitschrift fiir Volkerrecht. It has appeared in Breslau since
1906, one volume yearly. Editors, formerly Joseph Kohler
and L. Oppenheim, but since 1915, Joseph Kohler and Max
Pleischman.
The American Journal of International Law. It has appeared in
Washington since 1907, one volume yearly. Editor, James
Brown Scott. A Spanish edition has appeared since 1912.
Jahrbuch fiir Volkerrecht. It has appeared in Munich and
Leipzig since 1913, one volume yearly. Editors, Th.
Memeyer and Karl Strupp.
La ^e intemationale. It has appeared in Brussels since 1912,
two volumes yearly. Editors,H. La Fontaine and Paul Otlet.
Journal du Droit international. In 1915 the scope of this
journal of private International Law, founded in 1874 by
Edouard Qunet, and still edited by biin in Paris, was
extended so as to cover pubUc International Law.
Essajrs and Notes concerning International Law frequently
appear also in the Archiv fiir offentliches Becht, the Law
Quarterly Review, the Law Magazine and Review,^ the
Juridical Review, the Journal of the Society of Compara-
tive Legislation (now the Journal of Comparative Legisla-
tion and International Law), the American Law Review,
the Hsirvard Law Review, the Coliunbia Law Eeview, the
Ytde Law Review, the Annalen des deutschen Reiches, the
Zeitschrift fiir das privat- und offentliche Recht der Gegen-
wart (Grijnhut), the Revue de Droit pubUc et de la Science
pohtique (Lamaude), the Annales des Sciences poUtiques, the
Archivio giuridico, the Jahrbuch des offentUchen Rechts,
the Oesterreichische Zeitschrift fiir offentliches Recht, and
many others.
* Not published since 1915.
PART I
THE SUBJECTS OF THE LAW OF
NATIONS
CHAPTER I
INTERNATIONAL PERSONS
I
SOVEREIGN STATES AS INTERNATIONAL PERSONS
Vattel, i. §§ 1-12— Hall, § 1— Lawrence, § 37-43— Phillimore, i. §§ 61-68—
Twiss, i. §§ 1-11— Taylor, § 117— Walker, § 1— Westlake, i. pp. 1-5,
20-22— Wheaton, §§ 16-21— Hershey, Nos. 87-95— UUmann, § 19—
Heffter, § 15 — Holtzendorff in HoUzendorff, ii. pp. 5-11 — Bonfils, Nos.
160-164— Despagnet, Nos. 69-74— Pradier-Pod6r6, i. Nos. 43-81— Nys,
i. pp. 352-382— Rivier, i. § 3— Calvo, i. §§ 39-41— Fiore, i. Nos. 305-
309, and Code, Nos. 56-82— Martens, i. §§ 53-54— M^rignhac, i. pp.
114-232, andii. pp. 5, 154-221— Moore, i. § 3.
§ 63. The conception of International Persons is Real and
derived from the conception of the Law of Nations. inteTn"*
As this law is the body of rules which the civilised *j°°*i
, . , . . , Persona.
States consider legally binding m their intercourse,
every State which belongs to the civihsed States, and
is, therefore, a member of the Family of Nations, is
an International Person. And since now the Family of
Nations has become an organised community under the
name of the League of Nations with distinctive inter-
national rights and duties of its own, the League of
Nations is an International Person sui generis besides
the several States. But apart from the League of
Nations, sovereign States exclusively are International
Persons — i.e. subjects of International Law. There are,
however, as wiU be seen, fuU and not-full sovereign
States. Full sovereign States are perfect, not-full
126
126 INTERNATIONAL PERSONS
sovereign States are imperfect International Persons,
for not-full sovereign States are for some parts only
subjects of International Law.
In contradistinction to sovereign States which are
real, there are also apparent, but not real. International
Persons — such as Confederations of States, insurgents
recognised as a beUigerent Power in a civil war, and the
Holy See. All these are not, as wiU be seen,^ real sub-
jects of International Law, but in some points are
treated as though they were International Persons,
without thereby becoming members of the Family of
Nations. Nor do self-governing Dominions, such as
Canada or AustraUa, bear the character of Inter-
national Persons in consequence of the fact that
they are for some points treated as though they were
sovereign States, for instance, by being granted a vote
of their own in the Universal Postal Union, or by
being admitted as members of the League of Nations
side by side with the mother country .^
It must be specially mentioned that the character
of a subject of the Law of Nations and of an Inter-
national Person can be attributed neither to monarchs,
diplomatic envoys, private individuals, nor churches,
nor to chartered companies, nor to organised wandering
tribes.^ Nor is it admissible to distinguish * between
States as normal, and other pohtical entities, as for
instance the Roman CathoUc Church, as artificial
subjects of International Law.
Couoep- § 64. A State proper — in contradistinction to colonies
swe* *^® and Dominions ^ — ^is in existence when a people is
' See below, § 88 (Confederations character of subjects of the Law of
of States), § 106 (Holy See), and Nations ; Lawrence (§ 42) claims that
vol. ii. §§ 59 and 76 (Insurgents). character for corporations; and West-
. But see below, §| 94 (») and (5). J^^- ^^f^'.^P; \^ f,-. ^^1
' Most jurists agree with this viduals. The matter will be dig-
opinion, l)ut there are some who cussed below in §§ 288-290, 344, 384.
disagree. Thus, for instance, Hefifter * This is the opinion of Gidel in
(§ 48) claims for monarchs the R.O., xviii. (1911), p. 604,
SOVEEEIGN STATES AS INTERNATIONAL PERSONS 127
settled in a country under its ovra sovereign Govern-
ment. The conditions which must obtain for the
existence of a State are therefore four :
There must, first, be a people. A people is an aggre-
gate of individuals of both sexes who hve together as
a community in spite of the fact that they may belong
to different races or creeds, or be of different colour.
There must, secondly, be a couMry in which the
people has settled down. A wandering people, such as
the Jews were whilst in the desert for forty years before
their conquest of the Holy Land, is not a State. But
it matters not whether the country is small or large ;
it may consist, as in the case of city States, of one
town only.
There must, thirdly, be a Gooemment — ^that is, one
or more persons who are the representatives of the
people, and rule according to the law of the land. An
anarchistic community is not a State.
There must, fourthly and lastly, be a sovereign
Grovemment. Sovereignty is supreme authority, an
authority which is independent of any other earthly
authority. Sovereignty in the strict and narrowest
sense of the term imphes, therefore, independence all
round, within and without the borders of the country.
§ 65. A State in its normal appearance does possess Not-fuii
independence all round, and therefore full sovereignty. sS^^
Yet there are States in existence which certainly do
not possess fuU sovereignty, and are therefore named
not-fuU sovereign States. All States which are under
the suzerainty or under the protectorate of another
State, or are member-States of a so-caUed Federal State,
belong to this group. All of them possess supreme
authority and independence with regard to a part of
the tasks of a State, whereas with regard to another
part they are under the authority of another State.
Hence it is that the question is disputed whether such
128 INTERNATIONAL PERSONS
not-full sovereign States can be International Persons
and subjects of the Law of Nations at all.^
That they cannot be full, perfect, and normal sub-
jects of International Law there is no doubt. But it
is wrong to maintain that they can have no international
position whatever, and can never be members of the
Family of Nations at all. If we look at the matter as
it really stands, we observe that they in fact often
enjoy in many points the rights, and fulfil in other points
the duties, of International Persons. They often send
and receive diplomatic envoys, or at least consuls. They
often conclude commercial or other international treaties.
Their monarchs enjoy the privileges which, according to
the Law of Nations, the Municipal Laws of the different
States must grant to the monarchs of foreign States.
No other explanation of these and similar facts can be
given except that these not-full sovereign States are
in some way or another International Persons and
subjects of International Law. Such imperfect Inter-
national PersonaUty is, of course, an anomaly ; but the
very existence of States without full sovereignty is ^n
anomaly in itself. And history teaches that States
without full sovereignty have no durabUity, since they
either gain in time full sovereignty or disappear totally
as separate States, and become mere provinces of other
States. So anomalous are these not-full sovereign
States that no hard-and-fast general rule can be laid
down with regard to their position within the Family
of Nations, since everything depends upon the special
case. What may be said in general concerning all the
States without full sovereignty is that their position
' The question will be discussed sidered as International Persons at
again below, §§ 89, 91, 93, with all. Westlake, i. p. 21, answers it
regard to each kind of not-full aflBrmatively by stating : ' It is not
sovereign States. The object of necessary for a State to be inde-
discussion here is the question pendent in order to be a State of
whether suoh States can be con- International Law.'
SOVEREIGN STATES AS INTERNATIONAL PERSONS 129
within the Family of Nations, if any, is always more
or less overshadowed by other States.
§ 66. The distinction between States full sovereign Diyisi-
and not-full sovereign is based upon the opinion that g^e'^ °^
sovereignty is divisible, so that the powers connected ™ig"ty
... T Ml • T ■ oonteste(
With sovereignty need not necessarily be umted m one
hand. But many jurists deny the divisibihty of sove-
reignty, and maintain that a State is either sovereign or
not. They deny that sovereignty is a characteristic of
every State, and of the membership of the Family of
Nations. It is therefore necessary to face the con-
ception of sovereignty more closely. And it will be
seen that there exists perhaps no conception, the mean-
ing of which is more controversial than that of sove-
reignty. It is an indisputable fact that this conception,
from the moment when it was introduced into political
science until the present day, has never had a meaning
which was universally agreed upon.^
§ 67. The term sovereignty was introduced into Meaning
political science by Bodin in his celebrated work, De°l^^y
la RepMique, which appeared in 1577. Before Bodin, ^^^ sjx-
1 1 <• 1 Ti/r- T 11 i 1 1 • o teenth
at the end of the Middle Ages, the word souveram ^ was and
used in France for an authority, poUtical or other, which teJ™h
had no other authority above itseU. Thus the highest Oentune
courts were called Cours Souveraines. Bodin, however,
gave quite a new meaning to the old conception. Being
under the influence of, and in favour of, the pohcy of cen-
trahsation initiated by Louis xi. of France (1461-1483),
the founder of French absolutism, he defined sovereignty
as ' the absolute and perpetual power within a State.'
' The literature upon sovereignty Merriam, History of the Theory of
is extensive. The following authors Sovereignty tince Boiisseau (1900) ;
give a survey of the opinions of the Behm, Allgemeine Staatilehre (1899),
different writers: — Landman, Der §§ 10-16. See also Maine, Early
Souverdnitdtehegriff bei den frcmzo- Inttitutiom, pp. 342-400.
tischen Theoretikem (1896) ; Dock, ' Somieravn is derived either from
Der Sowoerdnitatibegriff von Bodin the Latin stiperanut or from svprema
bie 2« Fried/rich dem Grossen (1897) ; poteetai.
VOL. L I
130 INTERNATIONAL PERSONS
According to Bodin, such power is the supreme power
within a State without any restriction whatever except
the Commandments of God and the Law, of Nature. No
constitution can hmit sovereignty, which is an attribute
of the king in a monarchy, and of the people in a
democracy. A sovereign is above positive law. A
contract is only binding upon the sovereign, because
the Law of Nature commands that a contract shall be
binding.^
The conception of sovereignty thus introduced was
at once accepted by writers on pohtics of the sixteenth
century, but the majority of these writers taught that
sovereignty could be restricted by a constitution and
by positive law. Thus at once a somewhat weaker
conception of sovereignty than that of Bodin made its
appearance. On the other hand, in the seventeenth
century, Hobbes went even beyond Bodin, maintaining ^
that a sovereign was not bound by anything, and had
a right over everything, even over rehgion. Whereas a
good many pubHcists followed Hobbes, others, especially
Pufendorf, denied, in contradistinction to Hobbes, that
sovereignty involves omnipotence. According to Pufen-
dorf, sovereignty is the supreme power in a State, but
not absolute power, and sovereignty may weU be con-
stitutionally restricted.^ Yet in spite of all the differ-
ences in defining sovereignty, all authors of the sixteenth
and seventeenth centuries agree that sovereignty is in-
divisible, and contains the centralisation of all power
in the hands of the sovereign, whether a monarch or
the people itself in a repubhc. Yet the way for another
conception of sovereignty is prepared by Locke, whose
Two Treatises on Government appeared in 1689, and
paved the way for the doctrine that the State itself
' See Bodin, Dela Rdpvhlique, i.e. 8. ' See Pufendorf, De Jure Natwae
^ See Hobbes, De Give, o. 6, et Gentium, vii. v. 6, §§ 1-13.
§§ 12-15.
SOVEREIGN STATES AS INTERNATIONAL PERSONS 131
is the original sovereign, and that all supreme powers
of the Government are derived from this sovereignty
of the State.
§ 68, In the eighteenth century matters changed Meaning
again. The fact that the several hundred reigning °gjg°!^y"
princes of the member-States of the German Empire ™*he
had in practice, although not theoretically, become teenth
more or less independent since the Westphahan Peace ^'^*"''y-
enforced the necessity upon pubhcists of recognising
a distinction between an absolute, perfect, full sove-
reignty, on the one hand, and, on the other, a relative,
imperfect, not-full or half sovereignty. Absolute and
full sovereignty was attributed to those monarchs who
enjoyed an unquahfied independence within and with-
out their States. Relative and not-fuU sovereignty, or
half sovereignty, was attributed to those monarchs who
were, in various points of internal or foreign affairs of
state, more or less dependent upon other monarchs.
By this distinction the divisibiUty of sovereignty was
recognised. And when in 1787 the United States of
America turned from a Confederation of States into a
Federal State, the division of sovereignty between the
sovereign Federal State and the sovereign member-
States appeared. But it cannot be maintained that
divisibihty of sovereignty was universally recognised
in the eighteenth century. It suffices to mention
Rousseau, whose Contrat Social appeared in 1762,
and defended again the indivisibiUty of sovereignty.
Rousseau's conception of sovereignty is essentially that
of Hobbes, since it contains absolute supreme power,
but differs in so far as, according to Rousseau, sove-
reignty belongs to the people only and exclusively, is
inahenable, and therefore cannot be transferred from
the people to any organ of the State.
§ 69. During the nineteenth century three different
factors of great practical importance exercise their
132
INTERNATIONAL PERSONS
Meaning influence on the history of the conception of
of Sove- . , •' '■
reignty in Sovereignty.
th^e^Nine- rjij^^ gj.g^ fg^^^j. ^ ^j^^^^ ^^^ ^^^ exception of Russia,
Century, all civilised Christian monarchies during this period
turn into constitutional monarchies. Thus identifica-
tion in practice of sovereignty with absolutism belongs
to the past, and the fact is during the nineteenth
century generally recognised that a sovereign monarch
may well be restricted in the exercise of his powers by
a constitution and positive law.
The second factor is, that the example of a
Federal State set by the United States is followed by
Switzerland, Germany, and others. The Constitution
of Switzerland (Art. I.) declares decidedly that the
member-States of the Federal State remain sovereign
States, thus indirectly recognising the divisibility of
sovereignty between the member-States and the Federal
State according to different matters.
The third and most important factor is, that the
science of politics learns to distinguish between sove-
reignty of the State and sovereignty of the organ
which exercises the powers of the State. The majority
of pubhcists teach henceforth that neither the monarch,
nor ParHament, nor the people is originally sovereign
in a State, but the. State itself. Sovereignty, we say
nowadays, is a natural attribute of every State as a
State. But a State, as a Juristic Person, wants organs
to exercise its powers. The organ or organs which
exercise for the State powers connected with sovereignty
are said to be sovereign themselves ; yet it is obvious
that this sovereignty of the organ is derived from the
sovereignty of the State. And it is likewise obvious
that the sovereignty of a State may be exercised by the
combined action of several organs, as, for instance, ia
Great Britain, Bang and Parliament are the joint admini-
strators of the sovereignty of the State. And it is.
SOVEREIGN STATES AS INTERNATIONAL PERSONS 133
thirdly, obvious that a State can, as regards certain
matters, have its sovereignty exercised by one organ,
and as regards other matters by another organ.
In spite of this condition of things, the old contro-
versy regarding divisibility of sovereignty has by no
means died out. It acquired a fresh stimulus, on the
one hand, through Switzerland and Germany turning
iato Federal States, and, on the other, through the
conflict between the United States of America and her
Southern member-States. The theory of the con-
current sovereignty of the Federal State and its member-
States, as defended by The Federalist (Alexander
Hamilton, James Madison, and John Jay) in 1787, was
in Germany taken up by Waitz,^ whom numerous
pubhcists followed. The theory of the indivisibility
of sovereignty was defended by Calhoun,^ and many
European pubhcists followed him in time.
§ 70. From the foregoing sketch' of the history of Result of
the conception of sovereignty it becomes apparent that troversy
there is not, and never was, unanimity regarding this regarding
conception. It is therefore no wonder that the en- reignty.
deavour has been made to eliminate the conception of
sovereignty from the science of pohtics altogether, and
likewise to eliminate sovereignty as a necessary char-
acteristic of statehood, so that States with and without
sovereignty would in consequence be distinguishable.
It is a fact that sovereignty is a term used without any
well-recognised meaning except that of supreme author-
ity. Under these circumstances those who do not
want to interfere in a mere scholastic controversy must
cling to the facts of life and the practical, though
abnormal and illogical, condition of affairs. As there
can be no doubt about the fact that there are semi-
independent States in existence, it may well be main-
tained that sovereignty is divisible.
* Politik (1862). ' A DuqmtUUm on Oovemmenl (1851).
134 INTERNATIONAL PERSONS
II
RECOGNITION OF STATES AS INTERNATIONAL PERSONS
Hall, §§ 2 and 26— Lawrence, §§ 44-47— PMllimore, ii. §§ 10-22— Taylor, §§
153-160— Walker, § 1— Westlake, i. pp. 49-58— Wheaton, § 27— Moore,
i. §§ 27-73- Hershey, Nos. 110-123— Bluntschli, §§ 28-38— Hartmann,
§ 11— Heffter, § 23— Holtzendorflf in HoUzmdorff, ii. pp. 18-33— Liszt,
§ 5, iv.— UUmann, §§ 29-30— Bonfils, Nos. 195-213— Despagnet, Nos.
79-85— Pradier-Fod6r6, i. Noa. 136-145— Nys, i. pp. 73-120— M^rignhac,
i. pp. 320-330— Rivier, i. pp. 57-61— Oalvo, i. §§ 87-98— Fiore, i. Nos.
310-320, and Code, Nos. 165-182— Martens, i. §§ 63-64— Le Normand,
La Reconnaiasa/nce intemationale et ses diveraea AppUcaticms (1899) —
Borohard, § 85.
Reoogni- § 71. As the basis of the Law of Nations is the common
dition oi coBsent of the civihsed States, statehood alone does
^i™(rfTh6^°* imply membership of the Family of Nations.
Family of There are States in existence, although their number
a ions. (jg(,j,gg^ggg gradually, which are not, or not fully, members
of that family, because their civihsation, if any, does
not enable them and their subjects to act in conformity
with the principles of International Law. Those States
which are members are either original members because
the Law of Nations grew up gradually between them
through custom and treaties, or they are members which
have been recognised by the body of members already
in existence when they were born.^ For every State
that is not already, but wants to be, a member, recog-
nition is therefore necessary. A State is, and becomes,
an International Person through recognition only and
exclusively.
Many writers do not agree with this opinion. They
maintain that, if a new civihsed State comes into exist-
ence either by breaking off from an existing recognised
State, as Belgium did in 1831, or otherwise, such new
State enters of right into the Family of Nations and
' See above, §§ 27 and 28.
RECOGNITION OF STATES 135
becomes of right an International Person.^ They do
not deny that in practice such recognition is necessary
to enable every new State to enter into official inter-
course with other States. Yet they assert that theo-
retically every new State becomes a member of the
Family of Nations ipso facto by its rising into existence,
and that recognition supplies only the necessary evi-
dence for this fact.
If the real facts of international hfe are taken into
consideration, this opinion cannot stand. It is a rule
of International Law that no new State has a right
as against other States to be recognised by them, and
that no State has a duty to recognise a new State.
It is generally agreed that a new State before its recog-
nition cannot claim any right which a member of the
Family of Nations has as against other members. It can,
therefore, not be seen what the function of recognition
could be, if a State entered at its birth really of right
into the membership of the Family of Nations. There
is no doubt that statehood itself is independent of recog-
nition. International Law does not say that a State
is not in existence as long as it is not recognised, but it
takes no notice of it before its recognition. Through
recognition only and exclusively a State becomes an
International Person and a subject of International
Law.
§ 72. Recognition is the act through which it becomes Mode of
apparent that an old State is ready to deal with a new ^on?^"'
State as an International Person and a member of the
Family of Nations. Recognition is given either ex-
pressly or implicitly. If a new State asks formally for
recognition and receives it in a formal declaration of
any kind, it receives express recognition. On the other
hand, recognition is implicitly and indirectly given when
' See, for instance, Hall, §§ 2 and Rivier, i. p. 57 ; Heilborn in Stier-
26 ; Ullmann, § 30 ; Gareis, p. 64 ; Sondo, i. p. 58.
136 INTERNATIONAL PERSONS
an old State enters officially into intercourse with the
new, be it by sending or receiving a diplomatic envoy,^
or by concluding a treaty, or by any other act through
which it becomes apparent that the new State is actually
treated, as an International Person.
But no new State has by International Law a right
to demand recognition, although in practice such recog-
nition cannot in the long run be withheld, because
without it there is no possibility of entering into inter-
course with the new State. The interests of the old
States must suffer quite as much as those of the new
State, if recognition is for any length of time refused,
and in practice these interests in time enforce either
express or impHcit recognition. History nevertheless
records many cases of deferred recognition,^ and,
apart from other proof, it becomes thereby apparent
that the granting or the denial of recognition is not
a matter of International Law but of international
policy.
It must be specially mentioned that recognition by
one State is not at all binding upon other States, so
that they must follow suit. But in practice such an
example, if set by one or more Great Powers and at a
time when the new State is really estabhshed on a sound
basis, will make many other States at a later period
give their recognition too.
Reoogni- § 73. Kecognition wiU, as a rule, be given without
Condi" ^^ ^^7 conditions whatever, provided the new State is
tiona. safely and permanently estabhshed. Since, however,
the granting of recognition is a matter of poUcy, and
not of law, nothing prevents an old State from making
the 'recognition of a new State dependent upon the
latter fulfilhng certain conditions. Thus the Powers
assembled at the Berhn Congress in 1878 recognised
' Whether the sending of a consul * See the oases enumerated by
involves recofinition is discussed Rivier, i. p. 58.
below, § 428.
RECOGNITION OF STATES 137
Bulgaria, Montenegro, Serbia, and Roumania under the
condition only that these States should not ^ impose any
rehgious disabilities on any of their subjects.^ The
meaning of such conditional recognition is not that
recognition can be withdrawn in case the condition is
not complied with. The nature of £he thing makes
recognition, if once given, incapable of withdrawal.
But conditional recognition, if accepted by the new
State, imposes the internationally legal duty upon such
State of compl3mig with the condition ; f aihng which a
right of intervention is given to the other party for the
purpose of making the recognised State comply with
the imposed condition.
§ 74. Recognition is of special importance in those Reoogm-
cases where a new State tries to estabhsh itself by^^giy
breaking off from an existing State in the course of a °'?4 pj^'
revolution. And here the question is material whether
a new State has really already safely and permanently
estabhshed itself, or only makes efforts to this end
without having already succeeded. That in every case
of civil war a foreign State can recognise the insurgents ^
as a beUigerent Power if they succeed in keeping a part
of the country in their hands, set up a Government of
their own, and conduct their military operations accord-
ing to the laws of war there is no doubt. But between
this recognition as a beUigerent Power and the recog-
nition of these insurgents and their part of the country
as a new State, there is a broad and deep gulf. And the
question is precisely at what exact time recognition of
a new State may be given instead of the recognition as
a belKgerent Power. For an untimely and precipitate
recognition as a new State is a violation of the dignity
■ This condition contains a restrio- Treaty of Berlin of 1878, in Martens,
tion on the personal supremacy of N.R.G., 2nd Ser. iii. p. 449.
the respective States. See below, ' The question of recognition of
§ 128. the belligerency of insurgents is
exhaustively treated by Westlake, i.
' See Arts. 5, 27, 35, and 44 of the pp. 50-57.
138
INTERNATIONAL PERSONS
of the mother-State, to which the latter need not
patiently submit. It is frequently maintained that
such untimely recognition comprises an intervention.
But this is not correct, since intervention is (see below,
§ 134) dictatorial interference in the afiairs of another
State.
In spite of the importance of the question, no hard-
and-fast rule can be laid down as regards the time
when it can be said that a State created by revolution
has estabhshed itself safely and permanently. Indica-
tion of such safe and permanent estabhshment may
be foimd either in the fact that the revolutionary
State has utterly defeated the mother-State, or that
the mother-State has ceased to make efforts to subdue
the revolutionary State, or even that the mother-State,
in spite of its efforts, is apparently incapable of bringing
the revolutionary back imder its sway.^ Of course, as
soon as the mother-State itself recognises the new
State, there is no reason for other States to withhold
any longer their recognition, although they have even
then no legal obhgation to grant it.
The breaktng-off of the American States from their
European mother-States furnishes many illustrative
examples. Thus the recognition of the United States
by France in 1778 was precipitate. But when in 1782
England herself recognised the independence of the
United States, other States could accord recognition
too without giving offence to England. Again, when
the South American colonies of Spain declared their
independence in 1810, no Power recognised the new
States for many years. When, however, it became
apparent that Spain, although she still kept up her
claims, was not able to restore her sway, the United
^ When, in 1903, Panama fell away public as an independent State. For
from Colombia, the United States the motives of this quick action, see
immediately recognised the new Re- Moore, iii. § 344, pp. 46 and following.
EECOGNITION OP STATES 139
States recognised the new States in 1822, and England
followed the example in 1824 and 1825.^
§ 75. Recognition of a new State must not be con- state
founded with other recognitions. Recognition of in- ^0°°,^"
surgents as a beUigerent Power has already been men- oontradis-
•i-r.-i T- •• 1 -1 tmotionto
tioned. Besides this, recogmtion oi a change m the other
headship of a State,^ or in the form of its Government, tions^"^
or of a change in the title of an old State, are matters of
importance. But the granting or refusing of these
^recognitions has nothing to do with recognitibn of the
State itself. If a foreign State refuses the recognition"^
of a new head, or of a change in the form of the Govern-
ment of an old State, the latter does not thereby lose
its recognition as an International Person, although
no oflQ.cial intercourse is henceforth possible between
the two States as long as recognition is not given either
expressly or tacitly. And if recognition of a new title ^
of an old State is refused, the only consequence is that
such State cannot claim any privileges connected with
the new title. However this may be, if a State has not
recognised insurgents in a foreign State as a belligerent
Power, or has not recognised the new head or a change
in the form of Government of a foreign State, the
courts * of the State refusing recognition cannot on
their own account grant such recognition, which is
purely a matter for their Government.
^ See Gibbs, Recognition : a ' See below, § 342.
Chapter from the History of the ' See below, § 119.
North American and South Ameri- * Thompson v. Powles, (1828) 2
can States (1863), and Moore, i. §§ Simons 194 ; Kennett v. Chambers,
28-36. (1852) 14 Howard 38.
140 INTERNATIONAL PERSONS
III
CHANGES IN THE CONDITION OF INTERNATIONAL
PERSONS
GrotiuB, ii. o. 9, §§ 5-13— Pufendorf, viii. o. 12— Vattel, i. § 11— Hall, § 2—
Halleok, i. pp. 96-99— Phillimore, i. §§ 124-137— Taylor, § 163— West-
lake, i. pp. 58-66— Wheaton, §§ 22-32— Hershey, Nob. 124-125— Moore,
i. §§ 76-79— Bluntsohli, §§ 39-53— Hartmann, §§ 12-13— Heffter, § 24—
Holtzendorfif in HoUzendorff, ii. pp. 21-23 — Liszt, § 5 — UUmann,
§§ 31 and 35— Bonfils, Nob. 214-215— Deapagnet, Nos. 86-89— Pradier-
Fod6r6, i. Nos. 146-157— Nys, i. pp. 432-435— Rivier, i. § 3, pp. 62-67
— Calvo, i. §§ 81-106— Fiore, i. Nos. 321-331, and Code, Nos. 124-146
—Martens, i. §§ 65-69— Borohard, § 84.
Import- § 76. The existence of International Persons is ex-
oontra- posed to the flow of things and times. There is a
distino- Constant and gradual change in their citizens through
indif- deaths and births, emigration and immigration. There
Changes. ^^ ^ frequent change in those individuals who are at
the head of the States, and there is sometimes a change
in the form of their Governments, or in their dynasties
if they are monarchies. There are sometimes changes
in their territories through loss or increase of parts
thereof, and there are sometimes changes regarding
their independence through partial or total loss of the
same. Several of these and other changes in the con-
dition and appearance of International Persons are
indifferent to International Law, although they may
be of great importance for the inner development of
the States concerned, and, directly or indirectly, for
international poHcy. Those changes, on the other hand,
which are, or may be, of importance to International
Law must be divided into three groups according to
their influence upon the character of the State con-
cerned as an International Person. For some of these
changes afiect a State as an International Person,
CHANGES IN CONDITION 141
others do not ; again, others extinguish a State as an
International Person altogether.
§ 77. A State remains one and the same International Changes
Person in spite of changes in its headship, in its dynasty, f°g ^l^l
in its form, in its rank and title, and in its territory, as inter-
These changes cannot be said to be indifferent to Inter- Peraons.
national Law. Although strictly no notification to or
recognition by foreign Powers is necessary, according
to the Law of Nations, in case of a change in the head-
ship of a State or in its entire dynasty, or if a monarchy
becomes a repubhc or vice versa, no official intercourse
is possible between the Powers refusing recognition and
the State concerned. Although, further, a State can
assume any title it Ukes, it cannot claim the privileges
of rank connected with a title if foreign States refuse
recognition. And although, thirdly, a State can dispose
according to discretion of parts of its territory and
acquire as much territory as it hkes, foreign Powers
may intervene for the purpose of maintaining a balance
of power or on account of other vital interests.
But whatever may be the importance of such changes,
they neither afiect a State as an International Person,
nor affect the personal identity of the States concerned.^
France, for instance, has retained her personal identity
from the time the Law of Nations came into existence
until the present day, although she acquired, lost, and
regained parts of her territory, changed her dynasty, was
a kingdom, a repubhc, an empire, again a kingdom,
again a repubhc, again an empire, and is now, finally as
it seems, a repubhc. All her international rights and
duties as an International Person remained the very
same throughout the centuries in spite of these important
changes in her condition and appearance. Even such
' For this reason a State is re- head may have attained its position
sponsible for all acts committed by through revolution. See the ease of
a former head which was recognised Tlie EepvbUc of Peru v. Dreyfut
by a foreign State, although such Brothers, (1888) 38 Ch. D. 348.
142 INTERNATIONAL PERSONS
loss of territory as occasions the reduction of a Great
Power to a small Power, or such increase of territory
and strength as turns a small State into a Great Power,
does not affect a State as an International Person. Thus,
although through the events of the years 1859-1861
Sardinia acquired the whole territory of the Itahan
Peninsula and turned into the Great Power of Italy, she
remained one and the same International Person.^
Changes § 78. Changes which afiect States as International
stateras Persous are of different character.
^"*?''' , (1) As in a Real Union the member-States of the
national ^ '
Persons, uniou, although fuUy independent, make one Inter-
national Person,^ two States which hitherto were sepa-
rate International Persons are afiected in that character
by entering into a Eeal Union. For through that change
they appear henceforth together as one and the same
International Person. And should this union be dis-
solved, the member-States are again afiected, for they
now become again separate International Persons.
(2) Other changes afiecting States as International
Persons are such changes as involve a partial loss of
independence on the part of the States concerned.
Many restrictions may be imposed upon States with-
out interfering with their independence proper,^ but
certain restrictions involve inevitably a partial loss of
independence. Thus if a hitherto independent State
comes under the suzerainty of another State and becomes
thereby a haU sovereign State, its character as an
International Person is affected. The same is vahd
with regard to a hitherto independent State which comes
under the protectorate of another State. Again, if
several hitherto independent States enter into a Federal
* Another illustration is provided aoter of the Real Union is fully
by the expansion of Serbia into the discussed.
Serb-Croat-Slovene State after the ' See below, §§ 126-127, where the
World War. different kinds of these restrictions
' See below, § 87, where the ohar- are discussed.
CHANGES IN CONDITION 143
State, they transfer a part of their sovereignty to the
Federal State and become thereby part sovereign States.
On the other hand, if a vassal State or a State under
protectorate is freed from the suzerainty or protec-
torate, it is thereby afiected as an International Person,
because it turns now into a full sovereign State. And
the same is valid with regard to a member-State of a
Federal State which leaves the union and gains the
condition of a full sovereign State.
(3) States which become permanently neutraUsed
are thereby also affected in their character as Inter-
national Persons, although their independence remains
untouched. But permanent neutralisation alters the
condition of a State so much that it thereby becomes
an International Person of a particular kind.
§ 79. A State ceases to be an International Person Extino-
when it ceases to exist. Theoretically such extinction of°inter-
of International Persons is possible through emigration national
or the perishing of the whole population of a State,
or through permanent anarchy within a State. But
it is evident that such cases will hardly ever occur in
fact. Practical cases of extinction of States are :
merger of one State into another, annexation after
conquest in war, breaking up of a State into several
States, and breaking up of a State into parts which
are annexed by surrounding States.
By voluntarily merging into another State, a State
loses all its independence and becomes a mere part of
another. In this way the Duchy of Courland merged
in 1795 into Russia, the two Principahties of Hohen-
zollern-Hechingen and Hohenzollern-Sigmaringen in
1850 into Prussia, the Congo Free State in 1908 into
Belgium, and Korea in 1910 into Japan. And the same
is the case if a State is subjugated by another. In this
way the Orange Free State and the South African
Repubhc were absorbed by Great Britain in 1901. An
144 INTERNATIONAL PERSONS
example of the breaking up of a State into different
States is the division of the Swiss canton of Basel into
Basel-Stadt and Basel-Land in 1833. And an example
of the breaking up of a State into parts which are
annexed by surrounding States, is the absorption
of the old State of Poland by Russia, Austria, and
Prussia in 1795.
IV
SUCCESSION OF INTERNATIONAL PERSONS^
Grotius, ii. o. 9 and 10— Pufendorf, viii. o. 12— Hall, §§ 27-29— PhilUmore,
i. § 137— Lawrence, § 49— Halleok, i. pp. 96-99— Taylor, §§ 164-168—
Westlake, i. pp. 68-83, and Pa/pera, pp. 475-497— Wharton, i. § 5—
Moore, i. §§ 92-99 — Hershey, Nos. 127-130 — Wheaton, §§ 28-32—
Bluntsohli, §§ 47-59— Hartmaun, § 12— Heffter, § 25— Holtzendorff in
Holtzendorff, ii. pp. 33-43— Liszt, § 23— UUmann, § 32— Bonflls, Nos.
216-233— Despagnet, Nos. 89-102— Pradier-Fod6r6, i. Nos. 156-163—
Nys, i. pp. 432-435— Rivier, i. § 3, pp. 69-75— Calvo, i. §§ 99-104—
Fiore, i. Nos. 349-366— Martens, i. § 67— Appleton, Dee Effeta dee
Annexiona de Territoiree awr les Dettes de F^tat dimerribri ou annexi (1895)
— Huber, Die Staatensucceaaion (1898) — Keith, Th& Theory of State
Succesaion, with special reference to English and Colonial Law (1907) —
Cavaglieri, La Dottrina della Succesaione di Stato a Stato, etc. (1910) —
Fooherini, Le Successioni degli Stati, etc. (1910) — Schoenbom, Staaten-
auJczeaaionen (1913) — Michel, Die Einverleibung Franhforts in den
preuaaisdhen Stoat als Fall einer StaatensvJczeation (1913) — Schmidt,
Der Uebergang der StaateachvMen bei Oebietsabtretungen (1913) —
Richards in the Law Magazine and Beview, xxviii. (1903), pp. 129-141
— Keith in .Z.r., iii. (1909), pp. 618-648— Hershey in A. J., v. (1911),
pp. 285-297— Borohard, § 83— Sayre in A.J., xii. (1918), pp. 475-497,
and 705-743 — Phillipson, Termination of War amd Treatiea of Peace
(1916), pp. 34-51, and 290-334.
§ 80. Although there is no unanimity among the
writers on International Law with regard to the so-
called succession of International Persons, nevertheless
' The following text treats only of Theory of State Succession, eto.{lWJ);
the broad outlines of the subject, as and Schoenborn, Sta^enauizetaionen.
the practice of the States has hardly Keith's analysis of cases in Z.V.,
settled more than general principles. iii. (1909), pp. 618-648, is likewise
Details must be studied in Huber, Die very important.
Staatenauccesaion (1898) ; Keith, The
SUCCESSION OP INTERNATIONAL PERSONS 145
the following common doctrine can be stated to Common
. , Doctrine
exist. regarding
A succession of International Persons occurs when |o°°of"
one or more International Persons take the place of inter-
another International Person, in consequence of certain ptraont.
changes in. the latter's condition.
Universal succession takes place when one Inter-
national Person is absorbed by another, either through
subjugation or through voluntary merger. And imi-
versal succession further takes place when a State
breaks up into parts, which either become separate
International Persons of their own or are annexed by
surrounding International Persons.
Partial succession takes place, first, when a part of
the territory of an International Person breaks ofi in a
revolt and by winning its independence becomes itself an
International Person ; secondly, when one International
Person acquires a part of the territory of another through
cession ; thirdly, when a hitherto full sovereign State
loses part of its independence through entering into a
Federal State, or coming under suzerainty or under a
protectorate,, or when a hitherto not-fuU sovereign
State becomes fuU sovereign ; fourthly, when an Inter-
national Person becomes a member of a Real Union or
vice versa.
Nobody ever maintained that on the successor devolve
all the rights and duties of his predecessors. But after
stating that a succession takes place, writers try to
deduce the consequences and to make out what rights
and duties do, and what do not, devolve.
Several writers,^ however, contest the conunon doc-
trine, and maintain that a succession of International
Persons never takes place. Their argument is that the
rights and duties of an International Person disappear
^ For instance, Gareis, pp. 66-70, clearness ; Cavaglieri, op. cil. ;
who discusses the matter with great Fooherini, op. cit.
VOL. I. K
146 INTERNATIONAL PERSONS
with the extinguished Person, or become modified,
according to the modifications an International Person
undergoes through losing part of its sovereignty.
How far § 81. If the real facts of life are taken into considera-
Suooes- ^^^^^ ^j^g common doctrine caimot be upheld. To say
actually that succession takes place in such and such cases and
place. to make out afterwards what rights and duties devolve,
shows a wrong method of dealing with the problem.
It is certain that no general succession takes place
according to the Law of Nations. With the extinction
of an International Person disappear its rights and
duties as a person. But it is equally wrong to maintain
that no succession whatever occurs. For nobody
doubts that certain rights and duties actually and really
devolve upon an International Person from its prede-
cessor. And since this devolution takes place through
the very fact of one International Person following
another in the possession of State territory, there is no
doubt that, as far as these devolving rights and duties
are concerned, a succession of one International Person
to the rights and duties of another really does take
place. But no general rule can be laid down concern-
ing all the cases in which a succession takes place.
These cases must be discussed singly.^
Suooes- § 82. When a State merges voluntarily into another
conse" State — as, for instance, Korea in 1910 did into Japan —
Ab^Bor°* ^^ when a State is subjugated by another State, the
tion. latter remains one and the same International Person
and the former becomes totally extinct as an Inter-
nationa] Person. No succession takes place, therefore,
with regard to rights and duties of the extinct State
arising either from the character of the latter as an
International Person or from its purely pohtical treaties.
' It is impossible in a general above-named works of Huber, Keith,
treatise on International Law to and Sohoenborn ; but great care is
treslt all the oases with all details. necessary, since these writers are
Readers must be referred to the not at all unbiassed.
SUCCESSION OP INTERNATIONAL PERSONS 147
Thus treaties of alliance or of arbitration or of neutrality
or of any other pohtical nature fall to the ground with
the extinction of the State which concluded them. They
are personal treaties, and they naturally, legally, and
necessarily presuppose the existence of the contracting
State. But it is controversial whether treaties of com-
merce, extradition, and the Mke, made by the extinct
State remain vaHd, so that a succession takes place.
The majority of writers correctly, I think, answer the
question in the negative, because such treaties, although
they are non-pohtical in a sense, possess some pro-
minent pohtical traits.^
A real succession takes place, however, first, with
regard to such international rights and duties of the
extinct State as are locally connected with its land,
rivers, main roads, railways, and the hke. According
to the principle res transit cum suo onere, treaties of the
extinct State concerning boundary hnes, repairing of
main roads, navigation on rivers, and the hke, remain
vahd, and all rights and duties arising from such treaties
of the extiuct State devolve on the absorbing State.
A real succession, secondly, takes place with regard
to the fiscal property and the fiscal funds of the extinct
State. They both accrue to the absorbing State if so
facto by the absorption of the extinct State.^ But the
' On the whole question ooneern- conditions permit, enjoy the same
ing the extinction of treaties in rights and immunities as in Japan
consequence of the absorption of a proper, and the protection of their
State by another, see Moore, v. legally acquired rights subject in all
§ 773, and below, § 548. When, in oases to the jurisdiction of Japan.
1910, Korea merged into Japan, the The Imperial Government of Japan is
latter published a declaration — see ready to consent that the jurisdiction
Martens, N.B.O., 3rd Ser. iv. p. 26 in respect of the cases actually pen&-
— containing the following article ing in any foreign Consular Court in
with regard to the treaty obligations Korea at the time the Treaty of
of the extinct State of Korea : — Annexation takes effect shall remain
1. Treaties hitherto concluded by in such Court until final decision.
Korea with foreign Powers ceasing
to be operative, Japan's existing ' This was recognised by the High
treaties will, so far as practicable. Court of Justice in 1866 in the case
be applied to Korea. Foreigners of The United Statet v. Prioleau, 35
resident in Korea will, so fg>r as L^J. Ch. 7.
148
INTEENATIONAL PERSONS
debts 1 of the extinct State must, on the other hand,
also be taken over by the absorbing State.^ The private
creditor of an extinct State certainly acquires no right ^
by International Law against the absorbing State, since
the Law of Nations is a law between States only and
exclusively. But if he is a foreigner, the right of protec-
tion possessed by his home State enables the latter to
exercise pressure upon the absorbing State for the
purpose of making it fulfil its international duty to take
over the debts of the extinct State. Some jurists ^ go
so far as to maintain that the succeeding State must
take over the debts of the extinct State, even when
they are higher than the value of the accrued fiscal
property and fiscal funds. But I doubt whether in
such cases the practice of the States would follow that
opinion. On the other hand, a State which has subju-
gated another would be compelled ^ to take over even
^ See Moore, i. § 97, and Appleton,
Des Effete det Annexions de Terri-
toires swr les Deitea, etc. (1895).
\ This is almost generally recog-
nised by writers on International
Law and the practice of the States.
(See Huber, op. cit., pp. 156 and
282, note 449.) The Report of the
Transvaal Concessions Commission
(see Pari. Papers, South Africa,
1901, Cd. 623), although it declares
(p. 7) that 'it is clear that a
State which has annexed another is
not legally bound by any contracts
made by the State which has ceased
to exist,' nevertheless agrees that
'the modern usage of nations has
tended in the acknowledgment of
such contracts.' It may, however,
safely be maintained that not a
usage, but a real rule of International
Law, based on custom, is in exist-
ence with regard to this point.
(See Hall, § 29, and Westlake in the
Law Quarterly Review, xxvii. (1901),
pp. 392-401, xxi. (1905), pp. 335-339,
and Westlake, i. pp. 74-83.)
' This is the real portent of the
judgment in the case of Cook v.
Sprigg, [1899] A.C. 572, and in the
case of The West Sand Central
Gold Mining Co. v. The King, [1905]
2 K.B. 391. In so far as the latter
judgment denies the existence of a
rule of International Law that com-
pels a subjugator to pay the debts
of the subjugated State, its argu-
ments are in no wise decisive. An
international court would recognise
such a rule.
* See Martens, i. § 67 ; Heffter,
§ 25 ; Huber, op. cit., p. 158.
See the Report of the Transvaal
ncessions Commission, p. 9, which
maintains the contrary. Westlake
(i. p. 81) adopts the reasoning of
this report, but his arguments are
not decisive. The lending of money
to a, belligerent under ordinary
mercantile conditions — see Barclay
in the Law Quarterly Review, xxi.
(1905), p. 307— is not prohibited by
International Law, although the
carriage of such funds in cash on
neutral vessels to the enemy falls
under the category of carriage of
contraband, and can be punished by
the belligerents. (See below, vol. ii.
§352.)
/
SUCCESSION OP INTEENATIONAL PEESONS 149
such, obligations as have been incurred by the annexed
State for the immediate purpose of the war which led
to its subjugation.^
The case of a Federal State arising — hke the German
Empire in 1871 — above a number of several hitherto
full sovereign States also presents, with regard to many-
points, a case of State succession.^ However, no hard-
and-fast rules can be laid down concerning it, since
everything depends upon the question whether the
Federal State is one which — like all those of America —
totally absorbs all international relations of the member-
States, or whether — hke Switzerland — it absorbs these
relations to a greater extent only.^
§ 83. When a State breaks up into fragments which Suooea-
themselves become States and International Persons, !'°"i"
or which are annexed by surrounding States, it becomes quenoe o:
extinct as an International Person, and the same rules berment.
are vaHd as regards the case of absorption of one State
by another. A difficulty is, however, created when the
territory of the extinct State is absorbed by several
States. Succession actually takes place here too, first,
with regard to the international rights and duties
locally connected with those parts of the territory
which the respective States have absorbed. Succession
takes place, secondly, with regard to the fiscal property
and the fiscal funds which each of the several absorbing
States finds on the part of the territory it absorbs. And
the debts of the extinct State must be taken over. But
the case is complicated through the fact that there are
several successors to the fiscal property and funds, and
^ The question how far oouoessions 82 ; Moore, i. § 98 ; Gidel, Dea Effeta
granted by a subjugated State to a de V Annexion sur lea Gonceaaiona
private individual or to a company (1904).
must be "Pl^ld by the subjugating , g^^ ^^^
State, IS difficult to answer m its ^ ppf92-98 ; andSchoen:
generality. The merits of each case , ' ^ . |jf „ , X
ij ii. i.i.4.1 ■ t born, op. cm., 88 8 and 9.
would seem to have to be taken into ' ^ ' "^
consideration. See Westlake, i. p. ' See below, § 89.
150 INTERNATIONAL PERSONS
the only rule which can be laid down is that pro-
portionate parts of the debts must be taken over
by the different successors. In the compHcated case
of the dismemberment of Austria-Hungary in 1918,
when the Real Union — see below, § 87 — was dissolved,
and the old State broke up into fragments, some
of which became themselves States and International
Persons, while others were annexed by surrounding
States, the Treaties of Peace made express provision
for the apportionment between the States concerned of
the pre-war debt of Austria-Hungary, and defined the
extent of the Kabihty of Austria for the debt incurred
by the dismembered Dual Monarchy in prosecuting
the war. Thus the Treaty of Peace with Austria
provides (Article 203) that each of the States to which
territory of the former Austro-Hungarian monarchy
is transferred, and each of the States arising from the
dismemberment of that monarchy, including Austria,
shall assume responsibility for a portion of the secured
and unsecured bonded debt of the former Austro-
Hungarian Government, as it stood before the outbreak
of war. Machinery is provided for ascertaining that
portion which each State is to assume. None of these
Statea, other than Aixstria, are to bear any responsi-
bility for the bonded war debt of the former Austro-
Hungarian Government; but, on the other hand, they are
to have no recourse against Austria in respect of war debt
bonds which they or their nationals hold (Article 205).
When — as in the case of Sweden-Norway in 1905 —
a Real Union ^ is dissolved and the members become
separate International Persons, a succession likewise
takes place. All treaties concluded by the Union
devolve upon the former members, except those which
were concluded by the Union for one member only —
e.g. by Sweden-Norway for Norway — and which, there-
» See below, § 87,
SUCCESSION OF INTERNATIONAL PERSONS 151
fore, devolve upon that former member only, and,
further, except those which concerned the Union itself
and lose all meaning by its dissolution.^
§ 84. When in consequence of war or otherwise one Sucoea-
State cedes a part of its territory to another, or when ^a" e S
a part of the territory of a State breaks off, and becomes Separa-
a State and an International Person itself, succession Cession.
takes place with regard to such international rights and
duties of the predecessor as are locally connected with
the part of the territory ceded or broken ofi, and with
regard to the fiscal property ^ found on that part of the
territory. It would only be just if the successor had
to take over a corresponding part of the debt of its pre-
decessor, but no rule of Interhational Law concerning
this point can be said to exist, although many treaties
have stipulated a devolution of a part of the debt of
the predecessor upon the successor.^
Thus, for instance. Arts. 9, 33, 42 of the Treaty of
Berhn* of 1878 stipulated that Bulgaria, Montenegro,
and Serbia should take over part of the Turkish
debt. Again, the Peace Treaty of Lausanne of 1912,
by which Italy acquired Tripoh, stipulated that Italy
should take over a part of the Turkish debt.^ Like-
wise the Treaty of Peace with Germany provides that
the Powers to which German territory is ceded shall
assume responsibiHty for a portion of the pre-war debt
'■ The dismemberment of Austria- an individual by the Government
Hungary in 1918 involved, among before the cession, must be carried
other things, the dissolution of the out after the cession by the succeed-
Real Union between Austria and ing Government.
Hungary. The extent to which the ' Many writers, however, maintain
treaties concluded by the Union that there is such a rule of Inter-
devolved upon Austria and Hungary national Law. See Huber, op. cit.,
respectively is, so far at any rate as Nos. 125-135 and 205, where the
the Allied and Associated Powers treaties concerned are enumerated,
are concerned, provided for by the See also Schmidt, Der Uebergang
Treaties of Peace. See below, § 568/, dea Staatsichviden hei Oebietiabtre-
§ 5816, and vol. ii. § 99. tungen (1913).
^ Thus in the case of The United " See Martens, N.B.O., 2nd Ser.
States V. Perchemcm, (1833) 7 Peters iii. p. 449.
51, it was recognised that a grant ' Martens, N.B.O., 3rd Ser. vii.
of land in a ceded province, made to p. 7.
152
INTERNATIONAL PERSONS
of the German Empire, and also of the pre-war debt of
the German State to which the ceded territory belonged.
Arrangements are made for determining the portion
which each State is to assume (Article 254). As, how-
ever, Germany in 1871 refused to undertake any part
of the French debt, France is exempted by the Treaty
of Peace from assuming any part of the German debt
on account of the cession of Alsace-Lorraine (Article
255) ; and in the case of Poland, that part of the German
debt which is attributable to measures for the German
colonisation of Poland is to be excluded from the
apportionment (Article 255).
On the other hand, the United States refused, after
the cession of Cuba in 1898, to take over from
Spain the so-called Cuban debt — ^that is, the debt
which was settled by Spain on Cuba before the war.^
Spain argued that it was not intended to transfer to
the United States a proportiolial part of the debt of
Spain, but only such debt as attached individually
to the island of Cuba. The United States, however,
met this argument by the correct assertion that the
debt concerned was not incurred by Cuba, but by
Spain, and settled by her on Cuba.
COMPOSITE INTERNATIONAL PERSONS
Pufendorf, vii. u. 5— Hall, § 4— Westlake, i. pp. 31-37— Phillimore, i. §§ 71-
74, 102-121— Twiss, i. §§ 37-60— Halleok, i. pp. 75-79— Taylor, §§ 120-
130— Wheaton, §§ 39-59— Moore, i. §§ 6-11— Hershey, Nos, 96-102—
Hartmann, § 10— Heffter, §§ 20-21— Holtzendorff in Holtzmdvrff, ii.
pp. 118-149— Liszt, § 6— UUmann, §§ 20-24— Bonfils, Nos. 165-174—
Despagnet, Nos. 109-126— Pradier-Fod^r^, i. Nos. 117-124— M^rignhao,
ii. pp. 6-42— Nya, i. pp. 392-409— Rivier, i. §§ 5-6— Oalvo, i. §§ 44-61—
Fiore, i. Nos. 335-339, and Code, Nos. 101-109— Martens, i. §§ 56-59—
1 See Moore, i. § 97, pp. 351-385.
COMPOSITE INTERNATIONAL PERSONS 153
Puf endorf , J?e Systematibus Civitatum (1675) — Jellinek, Die Lehre von den
Staatenverbindimgen (1882) — Borel, ^wde aur la Souveraineti de I'&at
fidiratif (1886) — Brie, Theorie der Staatenverbindimgen (1886) — Hart,
Introduction to the Study of Federal Government in Haayard Historical
Monogra/pha (1891) (includes an excellent bibliography) — Le Fur, i!tat
fMiral et Oonfidiration d'^tata (1896) — Moll, Der Bundestaatsbegriff in
den Vereinigten Staaten von America (1905) — Ebers, Die Lehre von dem
Staateiibunde (1910).
§ 85. International Persons are as a rule single sove- Real and
reign States. In sucii single States there is one central com-'^^"*
political authority as Government, which represents the ^f^
State, within its borders as well as without, in its inter- national
national intercourse with other International Persons. ®'^°°^-
Such single States may be called simple International
Persons. And a State may remain a simple International
Person, although it may grant so much internal inde-
pendence to outljdng parts of its territory that these
parts become in a sense States themselves. Great
Britain is,^ or at any rate was before the World
War, a simple International Person, although the
Dominion of Canada, Newfoundland, the Common-
wealth of Austraha, New Zealand, and the Union of
South Africa were States, because Great Britain was
alone sovereign and represented exclusively the British
Empire within the Family of Nations.
Historical events, however, have created, in addition
to the simple International Persons, composite Inter-
national Persons. A composite International Person is
in existence when two or more sovereign States are
hnked together in such a way that they take up their
position within the Family of Nations either exclusively,
or at least to a great extent, as one single International
Person.- History has produced two different kinds of
such composite International Persons — namely. Real
Unions and Federal States. In contradistinction to
Real Unions and Federal States, a so-called Personal
^ See,?however, below, § 946.
154
INTERNATIONAL PERSONS
Union and a union of so-called Confederated States are
not International Persons.^
states in § 86. A Personal Union is in existence when two
u!don"* sovereign States and separate International Persons are
linked together through the accidental fact that they
have the same individual as monarch. Thus a Personal
Union existed from 1714 to 1837 between Great Britain
and Hanover, from 1815 to 1890 between the Nether-
lands and Luxemburg, and from 1885 to 1908 between
Belgium and the former Congo Free State. At present
there is no Personal Union in existence. A Personal
Union is not, and is in no point treated as though it
were, an International Person, and its two sovereign
member-States remain separate International Persons.
Theoretically it is even possible for them to make war
against each other, although in practice this wUl never
occur. If, as sometimes happens, they are represented
by one and the same individual as diplomatic envoy,
such individual is the envoy of both States at the same
time, but not the envoy of the Personal Union.
states in § 87. A Real Union ^ is in existence when two sove-
Unton. reign States are, by an international treaty, recognised
by other Powers, linked together for ever under the
same monarch, so that they make one and the same
International Person. A Real Union is not itself a
State, but merely a union of two full sovereign States
which together make one single but composite Inter-
national Person. They form a compound Power, and
are by the treaty of union prevented from making war
' I cannot agree with Westlake Bavaria to this country must be
(i. p. 37) that ' the space which granted the privileges due to a
some writers devote to the distino- foreign diplomatic envoy depends
tions between the different kinds of upon the question whether Bavaria
union between States ' is ' dispro- is an International Person in spite
portioned ... to their international of her being a member-State of the
importance.' Very important ques- German Empire,
tions are connected with these dis-
tinctions. Thequestion.forinstanoe, ' See Bliithgen in Z.V., i. (1907),
whether a diplomatic envoy sent by pp. 237-263.
COMPOSITE INTERNATIONAL PERSONS 155
against each other. On the other hand, they cannot
make war separately against a foreign Power, nor can
war be made against one of them separately. They
can enter into separate treaties of commerce, extradi-
tion, and the like, but it is always the Union which
concludes such treaties for the separate States, as
separately they are not International Persons. At present
there is no Real Union in existence,^ that of Sweden-
Norway having been dissolved in 1905, and that of
Austria-Hungary having come to an end by the collapse
of the Austro-Himgarian Empire in 1918, just before the
close of the World War.
Austria-Hungary became a Real Union in 1723. In
1849 Hungary was united with Austria, but in 1867
Hungary became again a separate sovereign State, and
the Real Union was re-established. Their army, navy,
and foreign ministry were united. The Emperor-King
could declare war, make peace, conclude aUiances and
other treaties, and send and receive the same diplo-
matic envoys for both States. With the downfall of
the Austro-Hungarian Empire ia 1918, the Union came
to an end.
Sweden-Norway 2 became a Real Union ^ in 1814.
The King could declare war, make peace, conclude alli-
ances and other treaties, and send and receive the same
diplomatic envoys for both States. The Foreign Secre-
tary of Sweden managed at the same time the foreign
affairs of Norway. Both States had, however, ia spite of
the fact that they made one and the same International
Person, different commercial and naval flags. The
Union was peacefully dissolved by the Treaty of Stock-
holm (Karlstad) of October 26, 1905. Norway became
' As regards Denmark-Iceland, ' This is not universally reoog-
whioh is seemingly, but not in fact, nised. Phillimore, i. § 74, maintains
a Real Union, see below, § 93. that there was a Personal Union
between Sweden and Norway, and
' See Aall and Gjelsvik, Die Twiss, i. § 40, calls it a Federal
Norwegiach-SchwedischeUnionilQlZ). Union.
156 INTERNATIONAL PERSONS
a separate kingdom, the independence and integrity of
which was guaranteed by Great Britaia, France, Germany,
and Eussia by the Treaty of Christiania of November 2,
1907.1
Confeder- § 88. Confederated States {Staatenbund) are a number
stltea of Ml sovereign States linked together for the mainte-
(SiocKen- nance of their external and internal independence by a
recognised international treaty into a union with organs
of its own, which are vested with a certain power over
the member-States, but not over the citizens of these
States. Such a union of Confederated States is not
any more itself a State than a Real Union is ; it is
merely an International Confederation of States, a
society of an international character, since the member-
States remain full sovereign States and separate Inter-
national Persons. Consequently, a union of Con-
federated States is not an International Person, although
it is for some purposes so treated on account of its repre-
senting the compound power of the fuU sovereign
member-States. The chief and sometimes the only
organ of the union is a Diet, where the member-States
are represented by diplomatic envoys. The power
vested in the Diet is an international power which does
not in the least affect the fuU sovereignty of the member-
States. That power is essentially nothing else than the
right of the body of the members to make war against
such a member as will not submit to those command-
ments of the Diet which are in accordance with the
Treaty of Confederation, war between the member-
States being prohibited ^ in all other cases.
History has shown that Confederated States repre-
sent an organisation which in the long run gives very
' See above, § 50. stances, not prohibited, is sufficient
to show that the League of Nations
^ The fact that war between the is not a Staatenbund — a union of Oon-
member-States of the League of federated States described in the
Nations is, under certain oiroura- text.
COMPOSITE INTERNATIONAL PERSONS 157
little satisfaction. It is for that reason that the three
important imions of Confederated States of modern
times — ^namely, the United States of America, the
German, and the Swiss Confederation — turned into
unions of Federal States. Notable historic Confedera-
tions are those of the Netherlands from 1580 to 1795,
the United States of America from 1778 to 1787,
Germany from 1815 to 1866, Switzerland from 1291 to
1798 and from 1815 to 1848, and the Confederation of
the Rhine (Rheinbund) from 1806 to 1813. At present
there is no union of Confederated States. The last in
existence, the major RepubUc of Central America,^
which comprised the three full sovereign States of
Honduras, Nicaragua, and San Salvador, and was
estabUshed in 1895, came to an end in 1898.
§ 89. A Federal State ^ is a perpetual union of several Federal
sovereign States which has organs of its own and is fl^^e«.
invested with power, not only over the member-States, """'fi")-
but also over their citizens. The union is based, first,
on an international treaty of the member-States, and,
secondly, on a subsequently accepted constitution of
the Federal State. A Federal State is said to be a
real State side by side with its member-States, because
its organs have a direct power over the citizens of those
member-States. This power was estabhshed by American^
^ See Martens, N'.B.O., 2nd Ser. newspaper articles on the draft
xxxii. pp. 276-292. Constitution with the intention of
' The distinction between Con- enlightening the nation which had
federated States and a Federal State *° "^°*« /°'' *^? .^'^^^^ ^°L, ^^^^
is not at all vmiversally recognised, P"!'P°^« they divided the diflferent
and the terminology is consequently P°''^*^ ^"'""f ^''^"'T^!? ^""^ *''?^*^'^
not at all the same with all writers then, separately AH these articles,
on International Law. ^^'"^ 7^« '^°t signed with the
names oi their authors, appeared
' When in 1787 the draft of the under the common title, 7%e
new Constitution of the United Federalist. They were later on
States, which had hitherto been collected into book-form and have
Confederated States only, was under been edited several times. It is
consideration by the Congress at especially Nos. 15 and 16 of The
Philadelphia, three members of the Federalist which establish the differ-
Congress — namely, Alexander Hamil- ence between Confederated States
ton, James Madison, and John Jay and a Federal State in the way
— made up their minds to write mentioned in the text above.
158 INTERNATIONAL PERSONS
jurists of the eighteenth century as a characteristic
distinction between a Federal State and Confederated
States, and Kent as well as Story, the two later
authorities on the Constitutional Law of the United
States, adopted this distinction, which is indeed kept up
until to-day by the majority of writers on pohtics. Now
if a Federal State is recognised as itself a State, side by
side with its member-States, it is evident that sovereignty
must be divided between the Federal State on the one
hand, and, on the other, the member-States. This
division is made in this way, that the competence over
one part of the objects for which a State is in existence
is handed over to the Federal State, whereas the com-
petence over the other part remains with the member-
States. Within its competence the Federal State can
make laws which bind the citizens of the member-States
directly without any interference by these member-
States. On the other hand, the member-States are
totally independent as far as their competence reaches.
For International Law this division of competence
is only of interest in so far as it concerns competence
in international matters. Since it is always the Federal
State which is competent to declare war, make peace,
coiaclude treaties of aUiance and other political treaties,
and send and receive diplomatic envoys, whereas no
member-State can of itself declare war against a foreign
State, make peace, conclude alliances or other poKtical
treaties, the Federal State, if recognised, is certainly
itself an International Person, with all the rights and
duties of a sovereign member of the family of Nations.
On the other hand, the international position of the
member-States is not so clear. It is frequently main-
tained that they have totally lost their position withia
the Family of Nations. But this opinion cannot stand
if compared with the actual facts. Thus, the member-
States of the Federal State of Germany, under the
COMPOSITE INTERNATIONAL PERSONS 159
Grerman Constitution as it existed before the World
War, retained their competence to send and receive
diplomatic envoys, not only in intercourse with one
another, but also with foreign States. Further, the
reigning monarchs of these member-States were stiU
treated by the practice of the States as heads of sove-
reign States, a fact without legal basis if these States
had been no longer International Persons. Thirdly,
the member-States of Germany, as well as of Switzer-
land, retained their competence to conclude international
treaties between themselves without the consent of the
Federal State, and they also retained the competence
to colnclude international treaties with foreign States
as regards matters of minor interest. If these facts ^
are taken into consideration, one is obliged to acknow-
ledge t^iat the member-States of a Federal State can be
International Persons in a degree. Full subjects of
International Law — International Persons with all the
rights and duties regularly connected with the member-
ship of the Family of Nations — they certainly cannot be.
Their position, if any, within this circle is overshadowed
by their Federal State ; they are part sovereign States,
and they are, consequently. International Persons for
some parts only.
But it happens frequently that a Federal State
assimies in every way the external representation of
its member-States, so that, so far as internatidnal rela-
tions are concerned, the member-States do not make
an appearance at all. This is the case with the United
States of America and all those other American Federal
States whose Constitution is formed accordiiig to the
model of that of the United States. Here the member-
States are sovereign too, but only with regard to
' See Riess, Auswdrtige Hoheits- rechtliche Stdlung der deutichen
rechte der deutachen Mnzelstaaten Einzeletaaten (1913).
(1905), and Windisoh, Die Volker-
160 INTERNATIONAL PERSONS
internal ^ afiairs. All their external sovereignty being
absorbed by the Federal State, it is certainly a fact
that they are not International Persons at all so long
as this condition of things lasts.
This being so, two classes of Federal States must
be distinguished ^ according to whether their member-
States are or are not International Persons, although
Federal States are in any case composite International
Persons. And whenever a Federal State comes into
existence which leaves the member-States for some parts
International Persons, the recognition granted to it by
foreign States must include their readiness to recognise
for the future, on the one hand, the body of the member-
States, the Federal State, as one composite International
Person regarding all important matters, and, on the
other hand, the single member-States as International
Persons with regard to less important matters and side
by side with the Federal State. That such a condition
of things is abnormal and illogical cannot be denied, but
the very existence of a Federal State side by side with
the member-States is quite as abnormal and illogical.
The Federal States in existence are the following : —
The United States of America since 1787, Switzerland
since 1848, Germany since 1871,^ Mexico since 1857,
Argentina since 1860, Brazil since 1891, Venezuela since
1893.
' The courts of the United States by the writers on the soieiice of
of America have always upheld the politics.
theory that the Federal Government ' Under the Constitution adopted
is sovereign as to all powers of govern- by Germany after the World War
ment actually surrendered, whereas Germany remains a Federal State ;
each member-State is sovereign as to but the member-States no longer
all powers reserved. See Merriam, enjoy the right to send or receive
History of the Theory of Sovereignty diplomatic envoys to or from foreign
since Rousseau (1900), p. 163. States (Article 45), nor to conclude
any treaties with them, without the
'' This distinction is of the greatest consent of the Federation (Articles
importance and ought to be accepted 45 and 78).
VASSAL STATES 161
VI
VASSAL STATES
Hall, § 4— Westlake, i. pp. 25-27— Lawrence, § 39— Phillimore, i. §§ 85-99—
Twiss, i. §§ 22-36, 61-73— Taylor, §§ 140-144— Wheaton, § 37— Moore, i.
§ 13— Hershey, Nos. 103-104— Bluntsohli, §§ 76-77— Hartmann, § 9—
Heffter, §§ 19 and 22— Holtzendorff in Holttenidorg, ii. pp. 98-117—
Liszt, § 6— UUmann, § 25— Gareis, § 15— Bonfila, Nos. 188-190—
Despagnet, Nos. 127-128— M6rignhao, i. pp. 201-219— Pradier-Fod6r6,
i. Nos. 109-112— Nys, i. pp. 382-390— Rivier, i. §4— Calvo, i. §§ 66-72
— Kore, i. No. 341, and Code, Nos. 110-115— Martens, 1. §§ 60-61—
Stubbs, Suzerainty (1882) — Baty, International Law in Sovih Africa
(1900), pp. 48-68— Boghitoh^vitoh, Halbsouverwnitat (1903).
§ 90. The union and the relations between a suzerain The
and its vassal State create much difficulty in the science between
of the Law of Nations. As both are separate States, a ^m^™°
union of States they certaraly make, but it would be Vassal
wrong to say that the suzerain State is, hke the Real
Union of States or the Federal State, a composite Inter-
national Person. And it would be equally wrong to
maintain either that a vassal State cannot be in any
way itself a separate International Person, or that
it is an International Person of the same kind as any
other State. What makes the matter so compUcated,
is the fact that a general rule regarding the relation
between the suzerain and vassal, and, farther, regarding
the position, if any, of the vassal within the Family of
Nations, cannot be laid down, as everything depends
upon the special case. What can and must be said is
that there are some States in existence which, although
they are independent of another State as regards their
internal afiairs, are as regards their international affairs
either absolutely or for the most part dependent upon
another State. They are called half sovereign ^ States
* In contradistinction to the States called half sovereign States, I call
which are under suzerainty or pro- member-States of a Federal State
teotorate, and which are commonly paai sovereign States.
VOL. I. L
162
INTERNATIONAL PERSONS
because they are sovereign within their borders, but not
without. The full sovereign State upon which a half
sovereign State is either absolutely or for the most part
internationally dependent, is called the suzerain State.
Suzerainty is a term which was originally used for
the relation between the feudal lord and his vassal ;
the lord was said to be the suzerain of the vassal, and
at that time suzerainty was a term of Constitutional
Law only. With the disappearance of the feudal system,
suzerainty of this kind likewise disappeared. Modern
suzerainty involves only a few rights of the suzerain
State over the vassal State which can be called consti-
tutional rights. The rights of the suzerain State over
the vassal are principally international rights, of what-
ever they may consist. Suzerainty is by no means
sovereignty. If it were, the vassal State could not be
sovereign in its domestic affairs and could never have
any international relations whatever of its own. And
why should suzerainty be distinguished from sove-
reignty if it be a term synonjonous with sovereignty ?
One may correctly maintain that suzerainty is a hind
of international guardianshi'p, since the vassal State is
either absolutely or mainly represented internationally
by the suzerain State.
Inter- § 91. The fact that the relation between the suzeraia
PositilTn and the vassal always depends upon the special case,
of Vassal excludes the possibility of laying down a general rule
as regards the position of vassal States within the Family
of Nations. It is certain that a vassal State as such
need not have any position whatever within the Family
of Nations. In every case in which a vassal State has
absolutely no relations whatever with other States, since
the suzerain absorbs these relations entirely, such vassal
remains nevertheless a half sovereign State on account
of its internal independence, but it has no position what-
ever withiu the Family of Nations, and consequently
VASSAL STATES 163
is for no purpose whatever an International Person and
a subject of International Law. This is the position of
the Indian vassal States of Great Britain, which have no
international relations ^ whatever either between them-
selves or with foreign States.^ Yet instances can be
given which demonstrate that vassal States can have
some small and subordinate position within that family,
and that they must in consequence thereof in some few
points be considered as International Persons. Thus
Egypt, while she was still a vassal State of Turkey,
could conclude commercial and postal treaties with
foreign States without the consent of suzerain Tiirkey,
and Bulgaria could, while she was under Turkish
suzerainty, conclude treaties regarding railways, post,
and the like. Thus, further, Egypt and Bulgaria, while
they were Turkish vassal States, were permitted to
send and receive consuls as diplomatic agents. Thus,
thirdly, the former South African Republic, although
ia the opinion of Great Britain under her suzerainty,
could conclude aU kinds of treaties with other States,
provided Great Britain did not interpose a veto within
six months after receiving a copy of the draft treaty, and
was absolutely independent in concluding treaties with
the neighbouring Orange Free State. Again, Egypt
acquired in 1898, when she was still a Turkish vassal
State, condominium,^ together with Great Britain, over
the Soudan, which meant that they exercised conjointly
sovereignty over this territory. Although vassal States
have not the right to make war independently of their
suzerain, Bulgaria, at the time a vassal State, never-
theless fought a war against the full sovereign Serbia
' See Westlake, i. pp. 41-43, and * The rulers of these States oannot
Papers, pp. 211-219, 620-632. See therefore claim the privileges which,
also Lee- Warner, The Native States according to International Law, are
of India (1910), pp. 254-279. Not to due to heads of States abroad,
be confounded with the position of
the Lidian vassal State is the ' See below, § 171.
position of Lidia. See below, § 946.
162
INTERNATIONAL PERSONS
because they are sovereign within their borders, but not
without. The full sovereign State upon which a half
sovereign State is either absolutely or for the most part
internationally dependent, is called the suzerain State.
Suzerainty is a term which was originally used for
the relation between the feudal lord and his vassal ;
the lord was said to be the suzerain of the vassal, and
at that time suzerainty was a term of Constitutional
Law only. With the disappearance of the feudal system,
suzerainty of this kind hkewise disappeared. Modern
suzerainty involves only a few rights of the suzerain
State over the vassal State which can be called consti-
tutional rights. The rights of the suzerain State over
the vassal are principally international rights, of what-
ever they may consist. Suzerainty is by no means
sovereignty. If it were, the vassal State could not be
sovereign in its domestic afiairs and could never have
any international relations whatever of its own. And
why should suzerainty be distinguished from sove-
reignty if it be a term synonymous with sovereignty ?
One may correctly maintain that suzerainty is a hind
of international guardianship, since the vassal State is
either absolutely or mainly represented internationally
by the suzerain State.
Inter- § 91. The fact that the relation between the suzerain
Po^^t^on and the vassal always depends upon the special case,
of Vassal excludcs the possibility of laying down a general rule
as regards the position of vassal States within the Family
of Nations. It is certain that a vassal State as such
need not have any position whatever within the Family
of Nations. In every case in which a vassal State has
absolutely no relations whatever with other States, since
the suzerain absorbs these relations entirely, such vassal
remains nevertheless a half sovereign State on account
of its internal independence, but it has no position what-
ever within the Family of Nations, and consequently
VASSAL STATES 163
is for no purpose whatever an International Person and
a subject of International Law. This is the position of
the Indian vassal States of Great Britain, which have no
international relations ^ whatever either between them-
selves or with foreign States.^ Yet instances can be
given which demonstrate that vassal States can have
some small and subordinate position within that family,
and that they must in consequence thereof in some few
points be considered as International Persons. Thus
Egypt, while she was still a vassal State of Turkey,
could conclude commercial and postal treaties with
foreign States without the consent of suzerain Turkey,
and Bulgaria could, while she was under Turkish
suzerainty, conclude treaties regarding railways, post,
and the like. Thus, further, Egypt and Bulgaria, while
they were Turkish vassal States, were permitted to
send and receive consuls as diplomatic agents. Thus,
thirdly, the former South African Republic, although
in the opinion of Great Britain under her suzerainty,
could conclude all kinds of treaties with other States,
provided Great Britain did not interpose a veto within
sis months after receiving a copy of the draft treaty, and
was absolutely independent in concluding treaties with
the neighbouring Orange Free State. Again, Egypt
acquired in 1898, when she was still a Turkish vassal
State, condominium,^ together with Great Britain, over
the Soudan, which meant that they exercised conjointly
sovereignty over this territory. Although vassal States
have not the right to make war independently of their
suzerain, Bulgaria, at the time a vassal State, never-
theless fought a war against the full sovereign Serbia
* See Westlake, i. pp. 41-43, and " The rulers of these States cannot
Papers, pp. 211-219, 620-632. See therefore claim the privileges which,
also Lee- Warner, The Native States according to International Law, are
o/Zntita (1910), pp. 254-279. Not to due to heads of States abroad,
be confounded with the position of
the Indian vassal State is the ' See below, § 171.
position of India. See below, § 946.
164 INTERNATIONAL PERSONS
in 1885, and 'Egypt conquered the Soudan conjointly
with Great Britain in 1898.
How could all these and other facts be explained, if
vassal States could never to some small extent be Inter-
national Persons ?
Side by side with these facts stand, of course, other
facts which show that for the most part the vassal
State, even if it has some small position of its own within
the Family of Nations, is considered a mere portion of
the suzerain State. Thus all international treaties con-
cluded by the suzerain State are ipso facto concluded
for the vassal, if an exception is not expressly mentioned
or self-evident. Thus, again, war of the suzerain is ipso
facto war of the vassal. Thus, thirdly, the suzerain
bears within certain limits a responsibihty for actions
of the vassal State.
Under these circumstances it is generally admitted
that the conception of suzerainty lacks juridical pre-
cision, and experience teaches that vassal States do
not remain haU sovereign for ever. They either shake
off suzerainty, as Roumania, Serbia, and Montenegro did
in 1878, and Bulgaria ^ did in 1908, or they lose their
half sovereignty through annexation, as in the case of
the South African Eepublic in 1901, or through merger,
as when the half sovereign Seignory of Kniephausen in
Germany merged in 1854 into its suzerain Oldenburg.
At present all such vassal States of importance as
were to some extent International Persons, have dis-
appeared. The last was Egypt ; ^ but on December 18,
' As regards the position of Bui- lichen Beziehungen Aegyptens zur
garia while she was a vassal State hohen P/orte (1897) ; Grunau, Die
under Turkish suzerainty, see Hoi- ataats- und volkerrechtliche Stellung
land, The European Concert in the Aegyptens (1903) ; Cocheris, Situa-
Eastern Question (1885), pp. 277-307, tion intemationale de I'ilgypte et du
and Nddjmidin, Volkerrechtliche Soudan (1903) ; Freycinet, La Ques-
Entwickelung Bulgariens (1908). tion d'j6gypte (1905) ; Dungern, Das
"See Holland, The European Staatsrecht Aegyptem (IQI\); Mayer,
Concert in the Eastern Question (1885), Die volkerrechtliche Stellung Aegyptens
pp. 89-205; Hesse, Die staatsrecht- (1914); Moret in R.G., xiv. (1907),
STATES UNDER PROTECTORATE 165
1914, after Turkey had joined the World War by siding
with Germany and Austria, Great Britain declared
Egypt to constitute a British protectorate.^
VII
STATES UNDER PROTECTORATE
Hall, §§ 4 and 38*— Westlake, i. pp. 22-24— Lawrence, § 39— Phillimore, i.
75-82— TwisB, i. §§ 22-36— Taylor, §§ 134-139— Wheaton, §§ 34-36—
Moore, i. § 14— Hershey, Nos. 105-106— Bluntsohli, § 78— Hartmann,
§ 9— Heflffcer, §§ 19 and 22— Holtzendorflf in JloUzendorff, ii. pp. 98-117
— Gareis, § 15— Liszt, § 6— Ullmann, § 26— Bonfils, Noa. 176-187—
Despagnet, Nos. 129-136— M6rignhao, ii. pp. 180-226— Pradier-Pod6r6,
i, Nob. 94-108— Nys, i. pp. 390-392— Rivier, i. § 4— Calvo, i. §§ 62-65—
Fiore, i. § 341, and Code, Nos. 116-123— Martens, i. §§ 60-61— Pillet in
B.G., ii. (1895), pp. 583-608 — Heilborn, Das volkerrechtUche Protektorat
(1891), and in Z.V., viii. (1814), pp. 217-232— Engelhardt, Les Pro-
tectorats, etc. (1896) — Gairal, Le Protectorat iiitemational (1896) — Des-
pagnet, Eseai sur les Protectorats (1896) — Boghitoh6vitoh, HaXbsou-
verdnitat (1903).
§ 92. Legally and materially different from suzerainty Conoep-
is the relation of protectorate between two States. It p°oteo-
happens that a weak State surrenders itself by treaty ^ t°rate.
into the protection of a strong and mighty State in such
a way that it transfers the management^ of all its
pp. 405-417 ; Lamba in R. O. , xvii. unilateral declaration on the part of
(1910), pp. 36-55; Sayur in Z.V., Great Britain. This was because,
iii. (1909), pp. 561-617. In the case when Turkey, soon after the out-
of TAe O/saj-to'eA, (1873)L.R. 4 Adm. break of the World War, joined
and Eccl. 59, the court refused to the Central Powers, Egypt had for
acknowledge the half sovereignty of thirty-two years been under British
Egypt ; see Phillimore, i. § 99. occupation. The British proteotor-
' See R.O., xxi. (1914), pp. 512- ate will be recognised by Turkey in
524, and M'll wraith in the Journal the Treaty of Peace with Turkey.
of the Society of Ccmvpa/rative Legis- ' A treaty of protectorate must
lation, New Ser. xvii. (1917), pp. not be confounded with a treaty of
238-259. protection in which one or more
' This is the rule, but in the strong States promise to protect a
case of Egypt — see above, § 91 — weak State without absorbing the
the protectorate was baaed upon a international relations of the latter.
166 INTERNATIONAL PERSONS
more important ^ international affairs to the protect-
ing State. Through such a treaty an international
union is called into existence between the two States,
and the relation between them is called protectorate.
The protecting State is internationally the superior of
the protected State ; the latter has with the loss of the
management of its more important international afEairs
lost its full sovereignty, and is henceforth only a half
sovereign State. Protectorate is, however, a concep-
tion which, just like suzerainty, lacks exact juristic
precision,^ as its real meaning depends very much upon
the special case. Generally speaking, protectorate may,
again like suzerainty, be called a kind of international
guardianship.
Inter- § 93. The position of a State under protectorate
Podt^n within the Family of Nations cannot be defined by a
of states general rule, since it is the treaty of protectorate which
Proteo- indirectly defines it by enumerating the reciprocal
torate. ngj^^g ^nd dutics of the protecting and the protected
State. Each case must therefore be treated according
to its own merits. Thus the question whether the
protected State can conclude certain international
treaties and can send and receive diplomatic envoys,
as well as other questions, must be decided according to
the terms of the particular treaty of protectorate. In
any case, recognition of the protectorate on the part of
third States is necessary to enable the superior State
to represent the protected State internationally. But
it is characteristic of a protectorate, in contradis-
' That the admittance of consuls quite clear the meaning of a clause
belongs to these affairs became which is supposed to stipulate a
apparent in 1906, when Russia, after protectorate. Thus Article 17 of the
some hesitation, finally agreed upon Treaty of Friendship and Commerce
Japan, and not Korea, granting the between Italy and Abyssinia, signed
exeqiiatwr to the consul-general at Ucoialli on May 2, 1889 — see
appointed by Russia for Korea, which Martens, JV.S.O., 2nd Ser. xviii.
was then a State under Japanese p. 697 — was interpreted by Italy as
protectorate. See below, § 427. establishing a protectorate over
' It is therefore of great import- Abyssinia, but the latter refused to
anoe that the parties should make recognise it.
STATES UNDER PEOTECTOEATE 167
tinction to suzerainty, that the protected State always
has, and retains for some purposes, a position of its own
within the Family of Nations, and that it is always for
some purposes an International Person and a subject of
International Law. It is never in any respect con-
sidered a mere portion of the superior State. It is,
therefore, not necessarily a party in a war ^ waged by
the superior State against a third State, and treaties
concluded by the superior State are not ifso facto
concluded for the protected State. And, lastly, it can
at the same time be under the protectorate of two
diEEerent States, which, of course, must exercise the
protectorate conjointly.
In Europe there are at present four protectorates : —
The EepubKc of Andorra is under the joint protectorate
of France and Spain.^ The KepubUc of San Marino,
an enclosure of Italy, formerly under the protectorate
of the Papal States, is now under the protectorate of
Italy. Iceland, formerly a part of Denmark, is since
December 1, 1918, an independent State under the
protectorate ^ of Demnark. Danzig is placed by the
Treaty of Peace with Germany under the protectorate
of the League of Nations.*
Of former protectorates in Europe the following may
be mentioned : — The principaUty of Monaco,^ which
^ This was recognised by the Since the foreign affairs of Iceland
English prize courts during the will be conducted by Denmark, the.
Crimean War with regard to the assertion that Denmark exercises a
Ionian Islands, which were then protectorate would seem to be correct,
still under British protectorate ; see * See Articles 102-104 of the
the case of The loniam Ships, 2 Spinks Treaty of Peace with Germany. The
212, and Phillimore, i. § 77. protectorate of the League of Nations
" This protectorate is exercised over Danzig is to be exercised by
for Spain by the Bishop of Urgel. Poland, because Poland is to conduct
As regards the international position the foreign relations of Danzig,
of Andorra, see Vilar, L'Andorre ' Maoey, Statut mtemational de
(190S). Monaco (1913). But see now the
' The status of Iceland in her Treaty of July 17, 1918 (? 1919), be-
relation to Denmark, according to tween France and Monaco — (not yet
what is called the ' Law of Con- printed in Martens) — defining the
federation ' — (not yet printed in future relations between France and
Martens) — is difficult to define. the Principality.
168
INTERNATIONAL PERSONS
was under the protectorate of Spain from 1523 to 1641,
afterwards of France until 1814, and then of Sardinia,
has now through desu^udo become a full sovereign
State, since Italy has never exercised the protectorate.
The Ionian Islands, which were under British protec-
torate from 1815, merged into the Kingdom of Greece
in 1863. The free State of Cracow, which was created
in 1815 by the Vienna Congress, and put under the
joint protectorate of Austria, Russia and Prussia, was
annexed by Austria in 1846.
Proteo- § 94. Outside Europe there are numerous States
outside under the protectorate of European States, but aU of
^« them are non-Christian States of such a civilisation as
Nations, would uot admit them to full membership of the Family
of Nations, apart from the protectorate under which
they now are. It may therefore be questioned whether
they have any real position within the Family
of Nations at all. As the protectorate over them is
recognised by third States, the latter are legally pre-
vented from exercising any pohtical influence in these
protected States, and, failing special treaty rights, they
have no right to interfere if the protecting State annexes
the protected State and makes it a mere colony of its
own, as, for instance, France did with Madagascar in
1896. Protectorates of this kind are in many cases,
although not necessarily, nothing else than the first step
to annexation. Examples of such protectorates out-
side Europe are the French over Tunis and Morocco,
and the EngUsh over Zanzibar and Egypt.
Be that as it may, these protectorates are exercised
over real States. For this reason they must not in
every way be compared with the so-called protectorates
over African tribes, which European States acquire
through a treaty with the chiefs of these tribes, and by
which the territory in question is preserved for
future occupation on the part of the so-called
SELF-GOVEENING DOMINIONS 169
protector.^ In practice they always lead to annexation,
if the protected State does not succeed in shaking
ofi the protectorate by force, as Abyssinia shook ofE
the pretended Italian protectorate in 1896.
VIII
SELF-GOVEENING DOMINIONS ^
Keith, Besponsible Government in the Dominiont (1912) — Imperial Unity and
the Dominions (1916) — Lawrence in Hearnahaw, King'i College Lectures
on Colonial Problems (1913), pp. 3-32— Ewart in A.J., vii. (1913),
pp. 268-284— Tupper in the Journal of the Society of Comparative
Legislation, New Ser. xvii. (1917), pp. 5-18 — Keith, ibid., xviii. (1918),
p. 54— Grey in The Times, January 31, 1920.
94a. Formerly the position of self-governing Dom- Former
iaions, such as Canada, Newfoundland, Australia, New ^"seu"
Zealand, and South Africa, did not in International go\em-
' , ing Dom-
Law present any difl&culties. Then they had no inter- inions.
national position whatever, because they were, from
the point of view of International Law, mere colonial
portions of the mother country. It did not matter
that some of them, as, for example, Canada and Australia,
flew as their own flag the modified flag of the mother
country, or that they had their own coinage, their
own postage stamps, and the hke. Nor did they
become subjects of International Law (although the
position was somewhat anomalous) when they were
admitted, side by side with the mother country, as
parties to administrative unions, such as the Universal
Postal Union. Even when they were empowered ^ by
the mother country to enter into certain treaty arrange-
ments of minor importance with foreign States, they
' See below, § 226, and Perrin- have moved so rapidly that the
jaquet in iJ.G., xvi. (1909), pp. 316- editor has been reluctantly compelled
367. to make considerable modifications,
' These two sections were roughly especially in the second of them,
drafted by the author ; but events ' See below, § 496o.
170 INTEENATIONAL PEBSONS
still did not thereby become subjects of International
Law, but simply exercised for the matters in question
the treaty-making power of the mother country which
had been to that extent delegated to them.
Prteent 94&. But the positiou of seH-governing Dominions
of'seu" underwent a fundamental change at the end of the
govern- World War. Canada, Austraha, New Zealand, South
inions. Africa, and also India were not only separately repre-
sented within the British Empire delegation at the
Peace Conference, but also became, side by side with
Great Britain, original members of the League of
Nations. Separately represented in the Assembly of
the League, they may, of course, vote there iadepend-
ently of Great Britain. Now the League of Nations is
not a mere administrative union like the Universal Postal
Union, but — see below, § 167c — the organised Family
of Nations. Without doubt, therefore, the admission
of these four seM-goveming Dominions and of India to
membership gives them a position in International Law.
But the place of the self-governing Dominions within
the Family of Nations at present defies exact defini-
tion, since they enjoy a special position, corresponding
to their special status within the British Empire as
' free communities, independent as regards all their
own affairs, and partners in those which concern the
Empire at large.' ^ Moreover, just as, in attaining to
that position, they have silently worked changes, far-
reaching but incapable of precise definition, in the
Constitution of the Empire, so that the written law
inaccurately represents the actual situation, in a similar
way they have taken a place within the Family of
Nations, which is none, the less real for being hard to
reconcile with precedent. Furthermore, they will cer-
tainly consoUdate the positions which they have won,
both within the Empire and within the Family of
* Viaoount Grey in The Times, January 31, 1920.
NEUTRALISED STATES 171
Nations. An advance in one sphere will entail an
advance in the other. For instance, they may well
acquire a Hmited right of legation ^ or limited treaty-
making power. But from this time onwards the
relationship between Great Britain and the self-govern-
ing Dominions of the British Empire is not Hkely to
correspond exactly to any relationship hitherto recog-
nised in International Law unless the British Empire
should turn into a Federal State.
IX
NEUTRALISED STATES
Westlake, i. pp. 27-31— Lawrence, §§ 43 and 225— Taylor, § 133— Hershey,
No. 109— Moore, i. § 12— BluntsohU, § 745— Heffter, § 145— Geffokeu in
HoUzendorff, iv. pp. 634-656— Gareis, § 15— Liszt, § 6— UUmann, § 27—
Bonfils, Nos. 348-369— Despagnet, Nos. 137-146— M4rignhao, ii. pp. 56-
65— Pradier-Fod6r6, ii. Nos. 1001-1015— Nys, i. pp. 410-431— Rivier, i.
§ 7 — Calvo, iv. §§2596-2610 — Fiooiord,. Masai lur la NeutralM perp&uelle
(2nd ed. 1902)— Regnault, Des Effete de la Neutrality perpitueUelilSdS)—
Tswettcoff, De la Situation jvridique des iltats nevtraZisii (1895) — Wicker,
Neutralisation (1911) — Descamps, L'&tat neutre a Titre permaiient {1912)
— Riehter, Die Neutralisation von Staaten (1913) — Krauel, NetUraiitdt,
Neutralisation, und Be/riedung im Volkerrecht (1915) — Morand in R.O.,
i. (1894), pp. 522-537— Hagerup in R.G., xii. (1909), pp. 577-602— Nys
in R.I., 2nd Ser. ii. (1900), pp. 467 and 583, iii. (1901), p. 15— West-
lake in i2./., 2nd Ser. iii. (1901), pp. 389-397— Winslow in 4. J^.,ii. (1908),
pp. 366-386— Wicker in A.J., v. (1911), pp. 639-652— Erich in Z. 7., vii.
(1913), pp. 452-476 — La Fontaine, Wicker, and others in the Proceedings
of the American Society of International Law, vol. xi. (1917), pp.
125-145.
§ 95. A neutralised State is a State whose independ- Coneep-
ence and integrity are for all the future guaranteed by ^eutrli-
an international convention of the Powers, under thejsed
condition that such State binds itself never to take up
arms against any other State except for defence against
attack, and never to enter into such international
^ It has now (May 1920) been officially announced that a Canadian
Minister is to be appointed to represent Canadian interests at Washington.
172 INTERNATIONAL PERSONS
obligations as could indirectly drag it into war. The
reason why a State asks or consents to become neutral-
ised is that it is a weak State and does not want an
active part in international politics, being exclusively
devoted to peaceable developments of welfare. The
reason why the Powers neutrahse a weak State may be
a diSerent one in different cases. The chief reasons
have been hitherto the balance of power in Europe and
the interest in keeping up a weak State as a so-called
buffer-State between the territories of Great Powers.
Not to be confounded^ with neutralisation of States is,
in the first place, neutralisation of parts of States, of
rivers, canals, and the Kke, which has the effect that
war cannot there be made and prepared ; secondly, the
special protection arranged, for the term of war, ia
special conventions for certain estabhshments ; and
thirdly, the unilateral declaration of a State that it will
always remain neutral.^
Act and § 96. Without thereby becoming a neutralised State,
of°Neutra- Gvcry State can conclude a treaty with another State
lisation. ^nd Undertake the obligation to remain neutral if such
other State enters upon war. The act through which
a State becomes a neutralised State for all the future
is always an international treaty of the Powers between
themselves and between the State concerned, by which
treaty the Powers guarantee collectively the independ-
ence and integrity of the latter State. If all the Great
Powers do not take part in the treaty, those which do
not take part in it must at least give their tacit consent,
by taking up an attitude which shows that they agree
to the neutrahsation, although they do not guarantee
it. In guaranteeing the permanent neutrality of a
State the contracting Powers enter into an obhgation
' See below, vol. ii. § 72. doubt that any State can declare
^ On so-oalled ' autonomous neu- itself permanently neutral, but it is
traUsation,' see Robertson in A.J., not 'neutralised' in the sense hitherto
xi. (1917), pp. 607-616. There is no understood.
NEUTEALISED STATES 173
not to violate on their part the independence of the
neutral State, and to prevent other States from such
violation. But the neutral State becomes, apart from
the guaranty, in no way dependent upon the guarantors,
and the latter gain no influence whatever over the neutral
State in matters which have nothing to do with the
guaranty.
The condition of the neutrahsation is that the neu-
trahsed State abstains from any hostile action, and
further from any international engagement which could
indirectly ^ drag it into hostihties against any other
State. And it follows from the neutrahsation that the
neutrahsed State can, apart from frontier regulations,
neither cede a part of its territory nor acquire new parts
of territory without the consent of the Powers.^
§ 97. Since a neutrahsed State is under the obUga- inter-
tion not to make war agaiast any other State, except Positro^u
when attacked, and not to conclude treaties of alhance, °* ,^®";
... . traused
guaranty, and the hke, it is frequently maintained that states.
neutrahsed States are part sovereign only, and not
International Persons of the same position within the
Family of Nations as other States. This opinion has,
however, no basis if the real facts and conditions of their
neutrahsation are taken into consideration. If sove-
reignty is nothing else than supreme authority, a neutral-
ised State is as fully sovereign as any not-neutrahsed
State. It is entirely independent outside as well as
inside its borders, since independence does not at all
* It was, therefore, impossible for ' This is a much discussed and very
Belgium, at that time herself a. controverted point. See Piocioni,
neutralised State and a party to the op. cit. , p. 82 ; Descamps, La
treaty that neutralised Luxemburg Neutraliti de la Belgigue (1902), pp.
in 1867, to take part in the guarantee 508-527 ; Fauohille in B. O. , ii. (1895),
of that neutralisation. See Article 2 pp. 400-439 ; Westlake in B.I,, 2nd
of the Treaty of London of May 11, Ser. iii. (1901), p. 396; Graux in
1867: 'Sous la sanction de la iJ./., 2nd Ser. vii. (1905), pp. 33-52 ;
garantie collective des puissances Rivier, i. p. 172; Descamps, L'ijtat
signataires, k I'exception de la neutre d Titre permcment, (1912), pp.
Belgique, qui est elle-mSme un 6tat 215-217. See also below, § 215.
neutre.'
174 INTEENATIONAL PERSONS
mean boundless liberty of action.^ Nobody maintains
that the guaranteed protection of the independence and
integrity of the neutrahsed State places this State under
the protectorate or any other kind of authority of the
guarantors. And the condition of neutraUsation to
abstain from war, treaties of alUance, and the Kke,
contains restrictions which do in no way destroy the
full sovereignty of the neutrahsed State. Such condi-
tion has the consequence only that the neutralised
State exposes itself to an intervention by right, and
loses the guaranteed protection, in case it commits hos-
tihties against another State, enters into a treaty of
aUiance, and the Kke. Just as a not-neutralised State
which has concluded treaties of arbitration with other
States to settle all conflicts between the parties by
arbitration has not lost part of its sovereignty because
it has thereby to abstain from arms, so a neutralised
State has not lost part of its sovereignty through enter-
ing into the obUgation to abstain from hostihties and
treaties of alHance. This becomes quite apparent when
it is taken into consideration that a neutralised State
not only can conclude treaties of aU kinds, except
treaties of aUiance, guarantee, and the like, but can
also have an army and navy ^ and can build fortresses,
as long as this is done with the purpose of preparing
defence only. Neutralisation does not even exercise an
influence upon the rank of a State. Switzerland is a
State with royal honours and does not rank behind
Great Britain or any other of the guarantors of her
neutraUsation. Nor is it denied that neutralised States,
in spite of their weakness and comparative unimport-
ance, can nevertheless play an important part within
the Family of Nations. Although she has no voice
' See below, § 126. dition not to keep an armed force
' The case of Luxemburg, whioh with the exception of a police, was
became neutralised under the con- an anomaly.
NEUTRALISED STATES 175
where history is made by the sword, Switzerland has
exercised great influence with regard to several points
of progress in International Law. Thus the Geneva
Convention owes its existence to the initiative of Switzer-
land. The fact that a permanently neutraUsed State
is in many questions a disinterested party makes such
State fit to take the initiative where action by a Great
Power would create suspicion and reserve on the part
of other Powers.
But neutraUsed States must always be an exception.
The Family and the Law of Nations could not be what
they are, if there were a great number of neutralised
States. It is neither in the interest of the Law of
Nations, nor in that of humanity, that all the smaller
States should become neutralised, as thereby the poUtical
influence of the few Great Powers would become still
greater than it already is. It was the nineteenth
century which called neutralised States into existence —
namely, Cracow, Switzerland, Belgium, and Luxemburg.^
The Republic of Cracow ^ was by the Vienna Congress
of 1815 created an independent and permanently
neutralised State imder the joint protection of Austria,
Prussia, and Russia ; but Austria annexed it in 1846.
Belgium ^ and Luxemburg * ceased to be neutralised in
consequence of the World War. Switzerland is there-
fore the only neutralised State in existence. The estab-
lishment of the League of Nations will probably have
the consequence that in future no other States will
become neutraUsed, because there will probably be no
demand for it.
" As regards the former Congo under the guarantee of England,
Free State, see below, § 101. It Austria, France, Spain, Prussia, and
should be noted that Article 10 of the Russia. However, as war broke out
Peace Treaty of Amiens of 1802 again in 1803, this stipulation was
stipulated that the island of Malta, never executed,
together with the islands of Gooo s ggg jj-yg j_ ___ 414.417,
and Comino, should be handed back v 1 ' ' t. nl
to the Knights of the Order of St. See below, § 99.
John, and permanently neutralised * See below, § 100.
176
INTERNATIONAL PERSONS
Switzer- § 98. The Swiss CJonfederation/ which was recog-
nised by the Westphalian Peace of 1648, has pixrsufed a
traditional pohcy of neutrality since that time. During
the French Revolution and the Napoleonic Wars, how-
ever, it did not succeed in keeping up its neutraUty.
French intervention brought about in 1798 a new Con-
stitution, according to which the several cantons ceased
to be independent States, and Switzerland turned from
a Confederation of States into the simple State of the
Helvetic Repubhc, which was, moreover, through a
treaty of alliance, linked to France. It was not till 1814
that Switzerland became again a Confederation of
States, and not tiU 1815 that she succeeded in becoming
permanently neutralised. On March 20, 1815, at the
Congress at Vienna, Great Britain, Austria, France,
Portugal, Prussia, Spain, Sweden, and Russia signed
the declaration in which the permanent neutraUty of '
Switzerland was recognised and collectively guaranteed,
and on May 27, 1815, Switzerland acceded to this
declaration. Article 84 of the Act of the Vienna Congress
confirmed this declaration, and an Act, dated November
20, 1815, of the Powers assembled at Paris after the final
defeat of Napoleon, recognised it again.^ Since that
time Switzerland has always succeeded in keeping up
her neutrality. She has built fortresses and organised
a strong army for that purpose, and in January 1871,
during the Franco-German War, she disarmed a French
army of more than eighty thousand men who had taken
refuge on her territory, and guarded them tiU after
the war.
Belgium. § 99. Belgium ^ became neutralised from the moment
^ See Sohweizer, Die Oeschichte ' See Besoamps, La Neubralite de
der tchweizeriachen Neutralitat, 2 la Bdgigue (1902), and L'tliaJ, nevire
vols. (1895), and Sherman in A.J., d, Titre permanent (\^V2,) ; B&nger anA
xii. (1918), pp. 241-250, 462-474, and Norton, England's Ovarantee to
780-795. Belgium and Luxemburg (1915).
' See Martens, N.S., ii. pp. 157,
173, 419, 740.
NEUTRALISED STATES 177
she was recognised as an independent State in 1831.
The Treaty of London, signed on November 15, 1831, by
Great Britain, Austria, Belgium, France, Prussia, and
Russia, stipulated at the same time in Article 7 the
independence and the permanent neutrality of Belgium,
and in Article 25 the guaranty of the signatory five
Great Powers.^ And the guaranty was renewed in
Article 2 of the Treaty of London of April 19, 1839,^ to
which the same Powers were parties, and which was the
final treaty concerning the separation of Belgium from
the Netherlands.
The neutrahty of Belgium was violated in 1914, when
Germany attacked her for the purpose of invading France
through Belgian territory. For this reason Belgium, at
the conference after the World War, asked that she
should cease to be neutrahsed, and the Powers acceded to
her demand. By Article 31 of the Treaty of Peace with
Germany, Germany consents to the abrogation of the
Treaties of April 19, 1839, which estabhshed the status
of Belgium before the war, and undertakes to observe
the new arrangements which are to be made by the
Principal Allied and Associated Powers, in concert with
Belgium and HoUand. By Article 83 of the Treaty
of Peace with Austria, Austria consents, and gives an
undertaldng, in similar terms.
§ 100. The Grand Duchy of Luxemburg ^ was from Luxem-
1815 to 1866 in personal union with the Netherlands, but ""^^^
at the same time a member of the Germanic Confedera-
tion, and Prussia had after 1856 the right to keep troops
in the fortress of Luxemburg. In 1866 the Germanic
Confederation came to an end, and Napoleon in. made
efforts to acquire Luxemburg by purchase from the
King of Holland, who was at the same time Grand Duke
^ See Martens, N'.B., xi. pp. 394 ' See Eysohen in R.I., 2nd Ser. i.
and 404. (1899), p. 5-42; Wompaoh, Le
Luxembourg neiitre (1900) ; Sanger
' See Martens, N.S., xvi. p. 770. and Norton, op. cit,
VOL. I. M
178 INTERNATIONAL PERSONS
of Luxemburg. As Prussia objected to this, it seemed
advisable to the Powers to neutralise Luxemburg. A
conference met in London, at which Great Britaia,
Austria, Belgium, France, Holland and Luxemburg,
Italy, Prussia, and Russia were represented, and on
May 11, 1867, a treaty was signed for the purpose of its
neutralisation, which is stipulated and collectively
guaranteed by all the signatory Powers, Belgium as a
neutraHsed State herself excepted, by Article 2.^
The neutraHsation took place, however, imder the
abnormal condition that Luxemburg was not allowed
to keep any armed force, with the exception of a pohce
for the maintenance of safety and order, nor to possess
any fortresses. Germany Adolated the neutraUty of
Luxemburg in 1914 for the purpose of invading France,
and its neutraHsation, like that of Belgium, came to
an end as a result of the World War. By Article 40
of the Treaty of Peace with Germany, Germany adheres
to its termination, and agrees to accept the arrange-
ments which may be made regarding Luxemburg by
the AlHed and Associated Powers. By Article 84 of the
Treaty of Peace with Austria, Austria agrees Hkewise.
The § 101. The former Congo Free State,^ which was
GoMo'^ recognised as an independent State by the Berlin Congo
Free Conference ^ of 1884-1885, was a permanently neutraHsed
State from 1885-1908, but its neutraHsation was im-
perfect in so far as it was not guaranteed by the Powers.
This fact is explained by the circumstajices under which
the Congo Free State attained its neutraHsation. Article
10 of the General Act of the Congo Conference of Berlin
stipulated that the signatory Powers should respect the
neutraHty of any territory within the Congo district,
' See Martens, N.R.G., xviii. p. data du Ccmgo, vol. i. {1905) ; Reeves
448. in A.J., iii. (1909), pp. 99-118.
' Moynier, La Fondation de I'^tat
inddpendcmt du Gongo (1887) ; Hall, ' See Protocol 9 of that conference
26**; Westlake, i. p. 30; Navez, in Martens, N.R.G., 2ncl Ser. x.
Esaai hi8torique sur I'Stat ind^pen- p. 353.
NON-CHRISTIAN STATES 179
provided the Power then or thereafter in possession of
the territory proclaimed its neutrahty. Accordingly,
when the Congo Free State was recognised by the Congress
of Berlin, the King of the Belgians, as the sovereign of
the Congo State, declared ^ it permanently neutral, and
this declaration was notified to, and recognised by, the
Powers. Since the Congo Conference did not guarantee
the neutrahty of the territories within the Congo district,
the neutralisation of the Congo Free State was not
guaranteed either. In 1908^ the Congo Free State
merged by cession into Belgium.
NON-CHRISTIAN STATES
Westlake, i. p. 40— PhilUmore, i. §§ 27-33— Bluntsohli, §§ 1-16— He£Fter, § 7
— Gareis, § 10— Rivier, i. pp. 13-18— Bonflls, No. 40— Martens, § 41—
Nys, i. pp. 126-137— Westlake, Papere, pp. 141-143.
§ 102. It wiU be remembered from the previous dis- No essen-
cussion of the dominion ^ of the Law of Nations that {eren^
this dominion extends beyond the Christian States, and ^etween
includes now, among other non-Christian States, the and other
Mohammedan State of Turkey and the Buddhistic State ^***^''
of Japan. As all fuU sovereign International Persons
are equal to one another, no essential difference exists
within the Family of Nations between Christian and
non-Christian States. That foreigners residing in Turkey
were before the World War stiU under the exclusive
jurisdiction of their consuls, was an anomaly based on a
restriction on territorial supremacy arising partly from
* See Martens, N.E.O., 2nd Ser. et le Droit international (\^\l). The
xvi. p. 585. question is doubtful, whether the
' See Martens, N.R.G., 3rd Ser. guarantee of the neutrality of Belgium
ii. pp. 101, 106, 109, and Delpeoh extended to the territory of the
and Marcaggi in iS.O., xviii. (1911), former Congo Free State iy«o/acio by
pp. 105-163. See also Brunet, its merger into Belgium.
L' Annexion du Congo d la Belgique ' See above, § 28.
180 INTERNATIONAL PERSONS
custom and partly from treaties. In September 1914,
Turkey denounced these restrictions, but her act called
forth immediate protest, and the matter is to be dealt
with by the Treaty of Peace with Turkey. Turkey will
be called upon to accept a scheme of judicial reform,
drafted by the British Empire, France, Italy, and
Japan, assisted by experts of other Powers which
enjoy exterritorial jurisdiction in Turkey. This new
system is to replace the system existing before the
World War, and generally called the ' regime of the
Capitulations.'
Inter- § 103. Doubtful before the World War was the posi-
Positron *^°^ °^ ^^ non-Christian States except Turkey and Japan,
ofnon- such as CMua, MongoHa, Siam, Persia, and further
states * Abyssinia, although the latter is a Christian State, and
iSey although China, Persia, and Siam took part in the Hague
^nd Peace Conferences of 1899 and 1907. Their civilisation
was essentially so different from that of the Christian
States that international intercoiirse with them of the
same kind as between Christian States had been hitherto
impossible. And neither their Governments nor their
populations were yet able fully to understand the Law
of Nations and to take up an attitude which was in
conformity with all the rules of this law. There should
have been no doubt that these States were not Inter-
national Persons of the same kind and the same posi-
tion within the Family of Nations as Christian States.
But it would have been equally wrong to maintain that
they were absolutely outside the Family of Nations,
and were for no part International Persons. Since they
used to send and receive diplomatic envoys and con-
clude international treaties, the opinion was justified that
such States were International Persons only in some
respects — ^namely, those in which they had expressly
or tacitly been received into the Family of Nations.
When Christian States began such intercourse with these
THE HOLY SEE 181
non-Christian States as to send diplomatic envoys to
them and receive their diplomatic envoys, and when
they entered into treaty obKgations with them, they in-
directly declared that they were ready to recognise them
for these parts as International Persons and subjects of
the Law of Nations. But for other parts such non-
Christian States remained as yet outside the circle of the
Family of Nations, especially with regard to war, and
they were for those parts treated by the Christian Powers
according to discretion. Some of them were the
subjects of international arrangements of great political
importance. Thus by the Treaty of London of December
13, 1906, Great Britain, France, and Italy agreed to co-
operate in maintaining the independence and integrity
of Abyssinia,^ and by the Treaty of St. Petersbiirg^
of August 18, 1907, Great Britain and Russia agreed
upon the integrity and independence of Persia and
Afghanistan, and recognised the protectorate of China
over Thibet. During the World War, Siam and China
took part on the side of the AlHed and Associated
Powers, and at its close Siam, China, and Persia became
original members of the League of Nations. The
position of Abyssinia remains unchanged.
XI
THE HOLY SEE
/'■ / y
Hall, § 98— WIestlake, i. pp. 37-39— Phillimore, ii. §§ 278-440— Twiss, i.
§§206-207-^^TayiDr, §§ 277, 278, 282— WTRtrton, i. § 70, p. 546— Hershey,
No. 89, p. 95— Moore^ i. § 18— Bluntsohli, § 172— Heffter, §§ 43^1^
Geffoken in' HoUzemdm-ff, ii.:pp. 151-222— Gareis, § 13— Liszt, | 5—
Ullmann, § 28— Bonfils, Nos. 370-396— Despagnet, Nos. 147-164—
M^rignhao, ii. pp. 119-153— Nys, ii. pp. 349-376— Rivier, i. § 8— Eiore,
i. Nos. 520, 521 — Martens, i. § 84 — Fiore, Ddla Ccmdizione giuridica inter-
» See Martens, iV.JfJ.G'.,'2nd Ser. ■= See Martens, N.R.G., 3rd Ser.
xxxv. p. 556, and 3rd Ser. v. p. 733. i. p. 8.
182 INTERNATIONAL PERSONS
rumanale ddla Chieaa e del Papa (1887) — Bompard, Le Pwpe et le Droit dee
Gens (1888) — Imbart-Latour, La PapavU en Droit international (1893)
— Olivart, Le Pope, lee iltats de I'^glise et I'ltalie (1897)— Le Fur,
Le Saint-Sidge et la Gowr de Cassation (1911) — Lampert, Die volker-
redhtliche Stellung dea apostoUichen Stuhles (1916) — Praag, Nob. 6, and
272-274— Chrftien, in E.G., vi. (1899), pp. 281-291— Bompard in E.G.,
vii. (1900), pp. 369-387— Flaisohlen in B.L, 2nd Ser. vi. (1904), pp.
85-94 — Higgins in the Journal of the Society of Oomparative Legislation,
New Ser. ix. (1909), pp. 252-264— Gidel in E.G., xviii. (1911), pp. 589-
620— Donnedieu in E.G., xxi. (1914), pp. 339-379— Soelle in E.G., xxiv.
(1917), pp. 244-255.
The § 104. When the Law of Nations began to grow up
Pa^i'^ among the States of Christendom, the Pope was the
States, monarch of one of those States — ^namely, the so-called
Papal States. This State owed its existence to Pepin-le-
Bref and his son Charlemagne, who established it in
gratitude to the Popes Stephen ii. and Adrian i., who
crowned them as Kings of the Franks. It remained
in the hands of the Popes tiU 1798, when it became a
RepubUc for about three years. In 1801 the former
order of things was re-established, but in 1809 it became
a part of the Napoleonic Empire. In 1814 it was re-
estabhshed, and remained in existence till 1870, when
it was annexed to the Kingdom of Italy. Throughout
the existence of the Papal States, the Popes were
monarchs, and, as such, equals of all other monarchs.
Their position was, however, even then anomalous, as
their influence and the privileges granted to them by
the different States were due, not alone to their being
monarchs of a State, but to their being the head of the
Roman Catholic Church. But this anomaly did not
create any real diflEiculty, since the privileges granted to
the Popes existed within the province of precedence
only.
The § 105. When, in 1870, Italy annexed the Papal States
LwTf ^^^ made Rome her capital, she had to undertake the
Guaranty, task of Creating a position for the Holy See and the
Pope which was consonant with the importance of the
THE HOLY SEE 183
latter to the Boman Catholic Church. It seemed im-
possible that the Pope should become an ordinary
ItaKan subject and that the Holy See should be an
institution under the territorial supremacy of Italy.
For many reasons no alteration was desirable in the
administration by the Holy See of the affairs of the
Roman Cathohc Church or in the position of the Pope
as the inviolable head of that Church. To meet the
case the ItaUan Parhament passed an Act regarding the
guaranties granted to the Pope and the Holy See, which
is commonly called the ' Law of Guaranty.' Accord-
ing to this the position of the Pope and the Holy See is
in Italy as follows : —
The person of the Pope is sacred and inviolable
(Article 1), althougkhe is subjected to the civil courts
of Italy.i An ofience against his person is to be punished
in the same way as an ofience against the King of Italy
(Article 2). He enjoys all the honours of a sovereign,
retains the privileges of precedence conceded to him by
the Roman Cathohc monarohs, has the right to keep
an armed bodyguard of the same strength as before
the annexation for the safety of his person and
of his palaces (Article 3), and receives an allowance of
3,225,000 francs (Article 4). The Vatican, the seat of
the Holy See, and the palaces where a conclave for the
election of a new Pope or where an Oecumenical Council
meets, are inviolable, and no Itahan official is allowed
to enter them without consent of the Holy See (Articles
5-8). The Pope is absolutely free in performing all the
functions connected with his mission as head of the
Roman Cathohc Church, and so are his ofl&cials (Articles
9 and 10). The Pope has the right to send and to receive
envoys, who enjoy all the privileges of the diplomatic
envoys sent and received by Italy (Article 11). The
freedom of communication between the Pope and the
1 See Bonfila, No. 379.
184 INTERNATIONAL PERSONS
entire Roman CatlioKc world is recognised, and the Pope
has therefore the right to a post and telegraph office of
his own in the Vatican or any other place of residence,
and to appoint his own post-office clerks (Article 12).
And, lastly, the colleges and other institutions of the
Pope for the education of priests in Rome and the en-
koronments remain under his exclusive supervision.
Without any interference on the part of the Italian
authorities (Article 13).
No Pope has as yet recognised this ItaHan Law of
Guaranty, nor had foreign States an opportunity of
giving their express consent to the position of the Pope
in Italy created by that law. But in practice foreign
States as well as the Popes themselves, although the
latter have never ceased to protest against the condi-
tion of things created by the annexation of the Papal
States, have made use of the provisions ^ of that law.
Several foreign States send, side by side with their
\ diplomatic envoys accredited to Italy, special envoys to
the Pope, and the latter sends envoys to several foreign
States.
Inter- § 106. The Law of Guaranty is not International but
Positfon ItaHan Municipal Law, and the members of the Family
^ *^® of Nations have hitherto not made any special arrange-
andthe mcuts with regard to the international position of the
Pope. Holy See and the Pope. (And, further, there ought to
be no doubt ^ that since the extinction of the Papal
States the Pope is no longer a monarch whose sove-
reignty is derived from his position as the head of a
State. For these reasons many writers^ maintaia
' But the Popes have hitherto Pope its monarch, such State oon-
never accepted the allowance pro- sisting of the Vatican and its der
vided by the Law of Guaranty. pendencies, and its subjects being
' But a number of writers — basing those individuals who live in the
their opinion upon a Circular Note of Vatican.
Cardinal Jacobin of September 11,
1882 — assert that even nowadays ' Westlake, i. p. 38, joined the
the Holy See is a real State and the ranks of these writers.
THE HOLY SEE 185
that the Holy See and the Pope have no longer
any international position whatever according to
the Law of Nations, since, apart from the League
of Nations, States only and exclusively are Inter-
national Persons. But if the facts of international/
life and the actual condition of things in everyday prac-l
tice are taken into consideration, this opinion has no
basis to stand upon. Although the Holy See is not a
State, the envoys sent by her to foreign States are treated
by the latter on the same footing with diplomatic envoys
as regards exterritoriality, inviolabihty, and ceremonial
privileges, and those foreign States which send envoys
to the Holy See claim for them from Italy all the privi-
leges and the position of diplomatic envoys. Further,
although the Pope is no longer the head of a State, most
privileges due to the head of a monarchical State are
still granted to him by foreign States. Of course,
through this treatment the Holy See does not acquire\
the character of an International Person, nor does the
Pope thereby acquire the character of a head of a
monarchical State. But for some purposes the Holy See:
is in fact treated as though she were an International
Person, and the Pope is treated in practice for the most
part as though he were the head of a monarchical State
It^must therefore be maintained that by custom, by
tacit coijsent of the members of the Family of Nations, 1
the Holy See has a gtfagfcinteriiatiQnal position.^ This '
position allows her to claim against all the States treat-
ment on some points as though she were an International
Person, and, further, to claim treatment of the Pope
for the most part as though he were the head of a
monarchical State. But it must be emphasised that,
although the envoys sent and received by the Holy
' That the Holy See does not between normal and artificial sub-
thereby become a subject of Inter- jects of International Law is not
national Law "is apparent, since — admissible. But see Gi'del in S. O. ,
see above, § 63 — the distinction xriii. (1911), p. 604.
186 INTEENATIONAL PERSONS
See must be treated as diplomatic envoys,^ they are
not such in fact, for they are not agents for international
afEairs of States, but exclusively agents for the affairs of
the Roman Catholic Church. And it must further be
emphasised that the Holy See cannot conclude inter-
national treaties or claim a vote at international con-
gresses and conferences. This does not mean that the
Powers could not, if they liked, invite an envoy of the
Pope to a congress or conference, and concede him a
vote ; it only means that the Pope, not being a head of a
State, cannot claim a right to be represented at a con-
gress or conference, and a right to a vote. Again, the
so-called concordats — that is, treaties between the Holy
See and States with regard to matters of the Roman
Catholic Church — are not international treaties, although
analogous treatment is iisually given to them. Even
formerly, when the Pope was the head of a State, such
concordats were not concluded with the Papal States,
but with the Holy See and the Pope as representatives
of the Roman Cathoho Church.
§ 106a. Whereas the international position of the
' The case of Montagnini, which archives of the former nunciature
coourred in December 1906, cannot until the Austrian ambassador in
be quoted against this assertion, for Paris, in February 1907, asked the
Montagnini was not at the time a French Foreign Office to transfer
person enjoying diplomatic privi- ' them to him for the purpose of
leges. Diplomatic relations between handing them on to the Holy See.
France and the Holy See had come to It must be specially mentioned that
an end in 1904 byFrance recalling her the seizure of his papers and the
envoy at the Vatican and at the same arrest and expulsion of Montagnini
time sending his passports to Loren- took place because he conspired
zelli, the Papal Nuncio in Paris. against the French Government by
Montagnini, who remained at the encouraging the clergy to refuse
nunciature in Paris, did not possess obedience to French laws. And it
any diploma.tio character after the must further be mentioned that
departure of the Nuncio. Neither LorenzelU, when he left the nuncia-
his arrest and his expulsion in ture, did not, contrary to all pre-
Deoember 1906, nor the seizure of his cedent, place the archives of the
papers at the nunciature, amounted nunciature under seals and confide
therefore to an international delin- them to the protection of another
quenoy on the part of the French diplomatic envoy in Paris. Details
Government. The papers left by the of the case are to be found in iJ./.,
formerPapalNunoio, Lorenzelli, were 2nd Ser. ix. (1907), pp. 90-96, and
not touched, and remained in the R.O., xiv. (1907), pp. 175-186.
THE HOLY SEE 187
Holy See and the Pope is secured in time of peace, Position
nothing can be said to be definitely settled with regard Hoiy^see
to their position in case Italy is at war. Indeed, the p°pe^®
Itahan Law of Guaranty does not make any difference when
between the position of the Holy See and the Pope in at*War.
time of peace and in time of war, but the matter is
nevertheless uncertain. Thus when Italy in May
1915 entered the World War by declaring war upon
Austria, the question arose whether the Austrian and
German Ambassadors accredited to the Holy See could
remain in Rome, or-whether Italy could insist upon their
departure. To avoid difficulties the Pope asked them
to depart. There is also the question whether mihtary
reasons might not 'compel Italy when at war to restrict
the absolute freedom of communication of the Holy See
with the entire Roman CathoUc world as guaranteed
by Article 12 of the Law of Guaranty. On the other
hand, in case Rome should be occupied by an enemy of
Italy, the occupant, though he would no doubt respect
the inviolability of the Pope, might for mihtary reasons
be disinchned to grant absolutely free communication ' '
between the Pope and the outside world.
§ 107. Since the Holy See has no power whatever to violation
protect herself and the person of the Pope against viola- Ho*y^See
tions, the question as to the protection of the Holy See ¥^^ ^^^
and the person of the Pope arises. ' I believe that, since
the present international positidn of the Holy See rests
on the tacit consent of the members of the ICamily of
Nations, many a Roman CathoUc Power would raise its
voice in case Italy or any other State should violate
the Holy See or the person of the Pope, and an inter-
vention for the purpose of protectiag either of them
would have the character of an intervention by right.
Italy herseK would certainly make such a violation by
a foreign Power her own affair, although she has no
more than any other Power the legal duty to do so,
European
States.
188 INTERNATIONAL PERSONS
and although she is not responsible to other Powers for
violations of the Personality of the latter by the Holy
See and the Pope.^
XII
STATES AT PRESENT INTERNATIONAL PERSONS
§ 108. All the European States are, of course, members
of the Family of Nations. They are the following :
Great Powers are :
Great Britain. France. Italy.
Germany and Russia are not at the present time Great
Powers, but may well become so again.
Smaller States are :
Albania.^
Austria.
Belgium.
Bulgaria.
Czecho-Slovakia.
Denmark.
Finland.
Greece.
Holland.
Hungary.
Luxemburg.^
Montenegro.2
Norway.
Poland.
Portugal.
Roumania.
Serb-Croat-Slovene State.
Spain.
Sweden.
Turkey.
Very small, but yet full sovereign, States are :
Monaco ^ and Lichtenstein.
' Wa3 the confiscation in 1916 of
the Palais de Venice, the seat of the
Austrian Legation at the Holy See,
a violation of the Pope's Personality ?
The Pope protested against the con-
fiscation aa a violation of his privi-
leges. See below, § 390 n., and Scelle
in B.O., xxiv. (1917), pp. 244-255.
' The future status of Albania,
Luxemburg, and Montenegro is,
however, at present unsettled.
* But see now the treaty between
France and Monaco referred to
above, § 93.
STATES AT PRESENT INTERNATIONAL PERSONS 189
Neutralised State is :
Switzerland.
HaK sovereign States are :
Andorra (under the protectorate of France and
Spain).
San Marino (under the protectorate of Italy).
Danzig (under Articles 102-104 of the Treaty of
Peace with Germany a Free City, and there-
fore an independent State. But it is only
half sovereign, because it is placed under the
protection of the League of Nations, and its
foreign relations are conducted by Poland).
Part sovereign States are :
(a) Member-States o^ Germany.
(&) Member-States of Switzerland :
Zurich, Berne, Lucerne, Uri, Schwyz, Unter-
walden (ob und nid dem Wald), Glarus, Zug,
Fribourg, Soleure, Basle (Stadt und Land-
schaft), Schafihausen, Appenzell (beider
Rhoden), St. Gall, Grisons, Aargau, Thurgau,
Tessin, Vaud, Valais, Neuch^tel, Geneva.
The position of the territories (other than Finland
and Poland) which formed part of the Russian Empire
is stiU unsettled. The British Government has recog-
nised the Governments of Esthonia, Lithuania, and
Latvia as de facto Governments, but these territories
have not so far secured recognition as independent
States.
§ 109. In America there are twenty-one States which American
are members of the Family of Nations, but it must be ^****^'
emphasised that the member-States of the five Federal
States on the American continent, although they are
part sovereign, have no footing within the Family of
Nations, because the American Federal States, in con-
190
INTERNATIONAL PERSONS
tradistinction to Switzerland, absorb all possible inter-
national relations of their member-States.
In North America ''■ there are :
Great Power : The United States of America.
Smaller State : The United States of Mexico.
In Central America there are
\
Costa Rica.
Honduras.
Cuba.
Nicaragua.
San Domingo.
Panama.
Guatemala.
San Salvador.
Haiti.
In South America there are :
The United States of
Ecuador.
Argentina.
Paraguay.
Bohvia.
Peru.
The United States of
Uruguay.
Brazil.
The United States of
Chih.
Venezuela.
Colombia.
African 8 HO. In Africa ^ there are :
states. -„., . _ c(^__^__ _
Pull sovereign States ;
Abyssinia.^ Liberia.
Half sovereign States :
Egypt (under British protectorate).
„ I (under French protectorate).
The Soudan has an exceptional position ; being
under the condominium of Great Britain and Egypt,
a footing of its own within the Family of Nations the
Soudan certainly has not.
' As to the position of Canada and
Newfoundland in North America,
South Africa in Africa, India in
Asia, and Australia and New Zealand
in Australasia, all self-governing
Dominions of the British Empire,
see above, §§ 94a and 946.
• But see above, § 28 (5) and § 103.
STATES AT PRESENT INTERNATIONAL PERSONS 191
§ 111. In Asia ^ there are :
Asiatic
Full sovereign States :
OuauCD*
Great Power : Japan.
Smaller States : Afghanistan.^
Persia.^
China.2
Siam.2
Hedjaz.
Half sovereign States :
Mongolia.^
Thibet.2
The position of the territories formerly part of the
Russian Empire remains unsettled. The British Govern-
ment has recognised the Governments of Azerbaijan,
the Erivan Republic of Armenia ^ and Georgia as de fado
Governments, but these territories have not so far been
recognised as independent States.
^ As to the position of Canada and Republic, is to be provisionally
Newfoundland in North America, recognised as an independent State
South Africa in Africa, India in subject to the rendering of adminis-
Asia, and Australia and New Zealand trative advice and assistance by a
in Australasia, all self - governing Mandatory in accordance with
Dominions of the British Empire, Article 22 of the Covenant of the
see above, §§ 94a and 946. League of Nations (see below, § I67p,
' But see above, § 28 (5) and § 103. p. 287), and that Syria and Mesopo-
° It has been officially stated that tamia are to be established as States
by the Treaty of Peace with Turkey of the same kind. Provision is also
a new State of Armenia, with fron- to be made for the future status of
tiers at present undetermined but Palestine,
presumably including the Erivan
CHAPTER II
POSITION OF THE STATES WITHIN THE FAMILY
OF NATIONS
INTERNATIONAL PERSpNALITY
Vattel, i. §§ 13-25— Hall, § 7— Westlake, i. pp. 306-309— Lawrence, § 57—
Phlllimore, i. §§ 144-147— Twiss, i. § 106— Wheaton, § 60— Hershey,
No. 131— Moore, i. § 23— Bluntschli, §§ 64-81— Hartmann, § 15— Hefiter,
§ 26— Holtzendorff in HoUzendorff, ii. pp. 47-51— Gareis, §§ 24-25—
Liszt, § 7— UUmann, § 38— Bonfils, Nos. 235-241— Despagnet, Nos.
165-166 — Nys, ii. pp. 216-222 — Pradier-Fod6r6, i. Nos. 165-195—
MMgnhao, i. pp. 233-239— Rivier, i. § 19— Fiore, i. Nos. 367-371—
Martens, i. § 72 — Fontenay, Des Droits et dea Devoirs des ^tats entre eux
(1888)— Fillet in B.O., v. (1898), pp. 66 and 236, vi. (1899), p. 503—
Cavaglieri, / Diritti fondamentaii degli Stati Tulla Societd iiUemazioncUe
(1906)— Brown in A. J., ix. (1913), pp. 305-335.
The so- § 112. Until the last two decades of the nineteenth
Fun^- century all jurists agreed that membership of the Family
mental of Nations bestowed so-called fundamental rights on
States'. Such rights were chiefly enumerated as the
rights of existence, of self-preservation, of equahty, of
independence, of territorial supremacy, of holding and
acquiring territory, of intercourse, and of good name
and reputation. It was and is maintained that these
fundamental rights are a matter of course and self-
evident, since the Family of Nations consists of sove-
reign States. But no unanimity exists with regard to
the number, the appellation, and the contents of these
alleged fundamental rights. Thus, to mention a modern
192
INTERNATIONAL PERSONALITY
193
French writer, Pillet,^ although he rejects all the funda-
mental rights which are usually enumerated, asserts the
existence of one fundamental right, namely, the right
of every State to demand respect for its sovereignty.
Again, to mention a modern German writer, Kaufmann ^
asserts that the right of self-preservation is the only
fundamental right. A great confusion ^ exists, and
hardly two text-book writers agree in details with
regard to the fundamental rights. This condition of
things has led to a searching criticism of the whole
matter, and several writers * have in consequence thereof
1 See R.G., v. (1898), pp. 66 and
236, and R.G., vi. (1899), p. 503.
^ See Kaufmann, Das Wesen des
Volherrechts und die Clausula rebus
sic stantibus (1911), pp. 106-204.
' The ' Declaration of the Rights
and Duties of Nations' proclaimed
by the American Institute of Inter-
national Law in 1916, at its first
meeting at Washington, has in no
way improved matters. The follow-
ing is the text of this declaration : —
I. Every nation has the right to
exist, and to protect and to conserve
its existence ; but this right neither
implies the right nor justifies the
act of the State to protect itself or to
conserve its existence by the com-
mission of unlawful acta against
innocent and unoffending States.
II. Every nation has the right to
independence in the sense that it
has a right to the pursuit of happi-
ness, and is free to develop itself
without interference or control from
other States, provided that in so
doing it does not interfere with or
violate the rights of other States.
III. Every nation is in law and
before law the equal of every other
nation belonging to the Society of
Nations, and all nations have the
right to claim and, according to the
Declaration of Independence of the
United States, 'to assume, among
the powers of the earth, the separate
and equal station to which the laws
of nature and of nature's God entitle
them.'
IV. Every nation has the right to
territory within defined boundaries
VOL. I. N
and to exercise exclusive jurisdiction
over its territory, and all persons,
whether native or foreign, found
therein.
V. Every nation entitled to a
right by the Law of Nations is entitled
to have that right respected and pro-
tected by all other nations, for right
and duty are correlative, and the
right of one is the duty of all to
observe.
VI. International Law is at one
and the same time both national and
international : national in the sense
that it is the law of the land and
applicable as such to the decision of
all questions involving its principles ;
international in the sense that it is
the law of the Society of Nations and
applicable as such to all questions
between and among the members of
the Society of Nations involving its
principles.
See A.J., X. (1916), p. 212, and
the Report.
* See Stoerk in Holtzendorffs
Encyklopddie der Rechtswistenschaft,
5th ed. (1890), p. 1291 ; Jellinek,
System der subjectiven offentlidien
Rechte (1892), p. 302; Heilborn,
System, p. 279, and others. The
arguments of these writers have
met, however, considerable resist-
ance, and the existence of funda-
mental rights of States is emphatic-
ally defended by other writers. See,
for instance, Fillet, I.e., Liszt, § 7,
and Gareis, §§ 24 and 25. Westlake,
i. p. 306, is in the ranks of those
writers who deny the existence of
fundamental rights.
194 POSITION OP THE STATES
asked that the fundamental rights of States should
totally disappear from the treatises on the Law of
Nations. I certainly agree with this. Yet it must be
taken into consideration that under the wrong heading
of fundamental rights a good many correct statements
have been made for hundreds of years, and that numerous
real rights and duties are customarily recognised which
are derived from the very membership of the Family
of Nations. They are rights and duties which do not
rise from international treaties between a multitude of
States, but which the States customarily hold as Inter-
national Persons, and which they grant and receive
reciprocally as members of the Family of Nations.
They are rights and duties connected with the position
of the States within the Family of Nations, and it is
therefore only adequate to their importance to discuss
them in a special chapter under that heading.
Inter- § 113. International Personality is the term which
ptrsoT-^ characterises fitly the position of the States within the
aiitya Family of Nations, since a State acquires International
Qualities. Personality through its recognition as a member. What
it really means can be ascertained by going back to the
basis ^ of the Law of Nations. Such basis is the common
consent of the States that a body of legal rules shall
regulate their intercourse with one another. Now a
legally regulated intercourse between sovereign States
is only possible under the condition that a certain liberty
of action is granted to every State, and that, on the
other hand, every State consents to a certain restric-
tion of action in the interest of the hberty of action
granted to every other State. A State that enters into
the Family of Nations retains the natural hberty of
action due to it in consequence of its sovereignty, but
at the same time takes over the obMgation to exercise
self-restraint and to restrict its hberty of action in the
^ See above, § 12.
INTERNATIONAL PERSONALITY 195
interest of that of other States. In entering into the
Family of Nations a State comes as an equal to equals ; ^
it demands that certain consideration be paid to its
dignity, the retention of its independence, of its terri- ,
torial and its personal supremacy. Recognition of a
State as a member of the Family of Nations involves
recognition of such State's equality, dignity, independ-
ence, and territorial and personal supremacy. But the
recognised State recognises in turn the same quahties
in other members of that family, and thereby it under-
takes responsibility for violations committed by it. All
these quahties constitute as a body the International
PersonaUty of a State, and International Personahty
may therefore be said to be the fact, involved in the very
membership of the Family of Nations,- that equahty,
dignity, independence, territorial and personal supre-
macy, and the responsibihty of every State are recog-
nised by every other State. The States are Inter-
national Persons because they recognise' these quahties
in one another, and recognise their responsibility for
violations of these quahties.
§ 114. But the position of the States within the other
Family of Nations is not exclusively chai^acterised by^g^gy^g^j
these quahties. The States make a commimity because t^e Posi-
there is constant intercourse between them. Inter- states
course is therefore a condition without which the Family ^^iy*o/
of Nations would not and could not exist. Again, there Nations.
are exceptions to the protection of the quahties which
constitute the International Personahty of the States,
and these exceptions are likewise characteristic of the
position of the States within the Family of Nations.
Thus, in time of war belhgerents have a right to violate
one another's Personahty in many ways ; even anni-
hilation of the vanquished State, through subjugation
after conquest, is allowed. Thus, further, in time of
* See above, § 14.
196 POSITION OF THE STATES
peace as well as in time of war, such violations of tlie
Personality of other States are excused as are com-
mitted in self-preservation or through justified inter-
vention. And, finally, jurisdiction is also important
for the position of the States within the Family of
Nations. Intercourse, self-preservation, intervention,
and jurisdiction must, therefore, likewise be discussed
in this chapter.
II
EQUALITY, RANK, AND TITLES
Vattel, ii. §§ 35-48— Westlake, i. pp. 321-325— Lawrence, §§ 112-119—
Phillimore, i. § 147, ii. §§ 27-43— Twiss, i. § 12— Halleek, i. pp. 125-155
—Taylor, § 282— Wheaton, §§ 152-159— Hershey, No. 146— Moore, i.
§ 24— Bluntsohli, §§ 81-94— Hartmann, § 14— Heffler, §§ 27-28— Holtzen-
dorff in HoUzendorff, ii. pp. 11-13— Ullmann, §§ 36 and 37— Bonfils, Nos.
272-278— Despagnet, Noa. 167-171— Pradier-Eod6r6, ii. Nos. 484-594—
M6rignhao, i. pp. 310-320— Rivier, i. § 9— Nys, ii. pp. 235-255— Calvo,
i. §§ 210-259— Fiore, i. Nos. 428-451, and Code, Nos. 393-426— Martens,
i. §§ 70-71— Lawrence, Essays, pp. 191-213— Westlake, Papers, pp. 86-
109 — Huber, Die OleicKheit der Staaten (1909) — Sohiieking, Der Staaten-
verbcmd der Haager Konferenzen (1912), pp. 216-229 — Satow, Diplomatic
Practice, i. §§ 21-88— Nys and Streit in R.I., 2nd Ser. i. (1899), pp. 273-
313, and ii. (1900), pp. 5-25— Hioks in A.J., ii. (1908), pp. 530-561.
Legal § 115. The equality before International Law of all
rf^states. member-States of the Family of Nations is an invariable
quality derived from their International Personality.^
Whatever inequality may exist between States as regards
their size, population, power, degree of civilisation,
wealth, and other quaUties, they are nevertheless equals
as International Persons. This legal equahty has three
important consequences :
The first is that, whenever a question arises which
has to be settled by the consent of the members of the
Family of Nations, every State has a right to a vote,
but to one vote only.
' See above, §§ 14 and 113.
EQUALITY, RANK, AND TITLES 197
The second consequence is that legally — although
not poUtically — ^the vote of the weakest and smallest
State has quite as much weight as the vote of the largest
and most powerful. Therefore any alteration of an
existing rule or creation of a new rule of International
Law by a law-making treaty has legal vaUdity for the
signatory Powers and those only who later on accede
expressly or submit to it tacitly through custom.
The third consequence is that — according to the rule
far in farem non habet imperium — no State can claim
jurisdiction over another full sovereign State. There-
fore, although foreign States can sue in foreign courts,^
they cannot as a rule be sued ^ there, unless they volun-
tarily accept ^ the jurisdiction of the court concerned,
or have submitted themselves to such jurisdiction by
suing * in such foreign coiirt.^
To the rule of equality there are three exceptions :
First, such States as can for some purposes ^ only be
considered International Persons, are not equals of the
full members of the Family of Nations.
Secondly, States under suzerainty and under pro-
tectorate, which are half sovereign and under the
^ See Phillimore, ii. § 113 A ; connected with the claim in the
Young, Foreign Companies amd other action. As regards the German case
Corporations (1912), pp. 300-309; of HellfM v. The Russian Oovem-
Nys, ii. pp. 340-348; Loening, Die ment, see Kohler in .^. F. , i v. (1910),
Gerichtsbwrlceit iiber fremde Staaten pp. 309-333 ; the opinions of Laband,
und Souverane (1903) ; Praag, Nos. Meili, and Seuffert, ibid., pp. 334-
164-190 ; and the following oases : 448 ; Baty in the Law Magazine and
The United States v. Wagner, (1867) Review, xxxv. (1909-1910), p. 207 ;
L.^.2Gh.App.5S2; The Republic of Wolfman in A. J., iv. (1910), pp.
Mexico V. Francisco deArrangoiz, amd 373-383.
Others, (1855) 11 Howard's Practice ° Quite exceptional cases are
Reports 1 (quoted by Scott, Gases created by Article- 281 of the
on International Law {1902),^. no) ; Treaty of Peace with Germany,
The Sapphire, (1870) 11 Wallace Article 233 of the Treaty of Peace
164. See also below, § 348. with Austria, and Article 161 of the
^ See De Saber v. The Queen of Treaty of Peace with Bulgaria,
Portugal, (1851) 17 Q.B. 171 and which provide that if the German or
196, and Vavasseur v. Krtipp, (1878) Austrian or Bulgarian Governments
L.R. 9 Oh. D. 351. engage in international trade, they
^ See Prioleau v. The United States shall not in respect thereof have
tmd Andrew Johnson, (1866) L.R. any rights, privileges, or immunities
2 Equity 659. of sovereignty.
* Provided the cross-suit is really * See above, § 103.
198 POSITION OF THE STATES
guardianship ^ of other States with regard to the man-
agement of external affairs, are not equals of States
which enjoy full sovereignty.
Thirdly, the part sovereign member-States of a
Federal State are not equals of full sovereign States.
It is, however, quite impossible to lay down a hard
and fast general rule concerning the amount of in-
equality between the equal and the unequal States,
as everything depends upon the circimistances and con-
ditions of the special case. Thus, for instance, such
States as can only for some parts be considered to be
International Persons, and, further, half and part
sovereign States, have not always a right to a vote when
a question arises which has to be settled by the consent
of the members of the Family of Nations. Again, a
State under the suzerainty of another, and also a State •
under the protectorate of another, may in some cases
be bound by the vote of the suzerain and the protect-
ing State respectively. Further, a Federal State may
for some matters have jurisdiction over its part
sovereign member-States, as may a suzerain State
over its vassal.
Political § 116. Legal equaUty must not be confounded with
monyof pohtical equaKty. The enormous differences between
Powers. States as regards their strength are the result of a natural
inequality which, apart from rank and titles, finds its
expression in the province of poUcy. Pohtically, States
are in no manner equals, as there is a difference between
the Great Powers and others. All arrangements made
by the body of the Great Powers naturally gain
the consent of the minor States, and the body of the
Great Powers in Europe was therefore in the period
before the World War called the European Concert.
There were then eight Great Powers — Great Britain,
Austria-Hungary, France, Germany, Italy, and Russia
1 See above, §§ 91 and 93.
EQUALITY, RANK, AND TITLES 199
in Europe, and the United States of America and
Japan outside Europe. But owing to the defeat of
the Central Empires and the breakdown of Russia,
there are at present only five Great Powers, namely,
the British Empire, France and Italy, together with the
United States in America, and Japan in Asia ; these
are the States which are called in the Treaties of Peace
the ' Principal AlHed and Associated Powers.' The
Great Powers are the leaders of the Family of Nations,
and every advance of the Law of Nations during the
past has been the result of their poHtical hegemony,
although the initiative towards progress was frequently
taken by a minor Power.
But, however important the position and the influ-
ence of the Great Powers, may be, they are by no means
derived from a legal basis or rule.^ It is nothing else
than powerful example which makes the smaller States
agree to the arrangements of the Great Powers. Great
Powers do not enjoy any superiority of right, but only
a priority of action. Nor has a State the character of
a Great Power by law. It is nothing else than actual
size, strength, and economic influence which make a
State a Great Power. Changes, therefore, often take
place. Whereas at the time of the Vienna Congress in
1815 eight States — namely, Great Britain, Austria,
France, Portugal, Prussia, Spain, Sweden, and Russia
— ^were still considered Great Powers, their number
decreased soon to five, when Portugal, Spain, and Sweden
lost that character. But the so-called Pentarchy of
the remaining ■ Great Powers turned into a Hexarchy
after the unification of Italy, because the latter became
at once a Great Power. The United States rose as a
Great Power out of the civil war in 1865, and Japan
^ This is, however, maintained by and Pitt Oobbett, Cases cmd Opinioni
a few writers. See, for instance, on International Law, 2nd ed. vol. i.
Lorimer.i. p. 170; Lawrence, §§ 113 (1909), p. 50.
and 114; Westlake, i. pp. 321-323,
200
POSITION OF THE STATES
States.
did the same out of the war with China in 1895. On
the other hand, in consequence of the World War,
Austria, Germany, and Russia ceased to be Grreat Powers,
although Germany, as well as Russia, may in the course
of time again become Great Powers. It is a question
of pohtical and economic influence, and not of law,
whether a State is or is not a Great Power. Whatever
large-sized State with a large population gains such
strength and economic power that its political influence
must be reckoned with by the other Great Powers,
becomes a Great Power itself.^ Nor has the establish-
ment of the League of Nations with the preponderance
of the Great Powers within its Council turned their
pohtical into a legal hegemony, because this preponder-
ance is only the fruit of their pohtical influence.
Rank of § 117. Although the States are equals as Inter-
national Persons, they are nevertheless not equals as
regards rank. The differences as regards rank are
recognised by International Law, but the legal equahty
of States within the Family of Nations is thereby as little
afiected as the legal equality of the citizens is affected
within a modern State where differences in rank and
titles of the citizens are recognised by Municipal Law.
The vote of a State of lower rank has legally as much
weight as that of a State of higher rank. And the
difference in rank nowadays no longer plays such an
important part as in the past, when questions of etiquette
gave occasion for much dispute. It was ia the six-
' In contradistinction to the gene- with legal inequality. I cannot agree
rally recognised political hegemony with Lawrence when he says (§ 114,
of the Great Powers, Lawrence (§§ p. 276) :' ... in a system of rules
113 and 114) and Taylor (§§ 415 and depending, like International Law,
424) maintain that the position of for their validity on general consent,
the Great Powers is legally superior what is political is legal also, if it is
to that of the smaller States, being generally accepted and acted on.'
a ' Primacy ' or ' Overlordship. ' This The Great Powers are de facto, by
doctrine, which professedly seeks to the smaller States, recognised as
abolish the universally recognised political leaders, but this recognition
rule of the equality of States, has no does not involve recognition of legal
sound basis, and confounds political superiority.
EQUALITY, RANK, AND TITLES 201
teenth and seventeenth centuries that the rank of the
different States was zealously discussed under the head-
ing of droit de preseance or questions de pre'seance. The
Congress at Vienna of 1815 intended to estabhsh an
order of precedence within the Family of Nations, but
dropped this scheme on account of practical difficulties.
Thus the matter is entirely based on custom, which
recognises the following three rules :
(1) The States are divided into two classes — namely.
States with, and States without, royal honours. To
the first class belong Empires and Kingdoms ; to it be-
long Grrand Duchies ; io this class belong also the great
Repubhcs such as France, the United States of America,
Switzerland, the South American Repubhcs, and others.
All other States belong to the second class. The Holy
See is treated as though she were a State with royal
honours. States with royal honours have exclusively
the right to send and receive diplomatic envoys of the
first class ^ — namely, ambassadors ; and their monarchs
address one another as ' brothers ' in their official letters.
States with royal honours always precede other States.
(2) Full sovereign States always precede those under
suzerainty or protectorate.
(3) Among themselves States of the same rank do
not precede one another. Empires do not precede
kingdoms, and since the time of Cromwell and the first
French Repubhc monarchies do not precede repubhcs.
But the Roman Catholic States always concede pre-
cedence to the Holy See, and the monarchs recognise
among themselves a difference with regard to cere-
monials between emperors and kings on the one hand,
and, on the other, grand dukes and other monarchs.
§ 118. To avoid questions of precedence, on signing a The
treaty. States of the same rank often observe a conven- n^t*^"^'
tional usage which is called the ' Alternat.' According to
1 See below, § 365.
202
POSITION OF THE STATES
States.
that usage the signatures of the signatory States of a
treaty alternate in a regular order or in one determined
by lot, the representative of each State signing first
the copy which belongs to his State. But sometimes
that order is not observed, and the States sign either in
the alphabetical order of their names in French or in
no order at all (pele-mele).
Titles of § 119. At the present time. States, save in a few
exceptional instances, have no titles, although formerly
such titles did exist. Thus the former Republic of
Venice, as well as that of Genoa, was addressed as 'Serene
Eepublic,' and up to the present day the Repubhc of
San Marino ^ is addressed as ' Most Serene Republic'
Nowadays the titles of the heads of monarchical States
are in so far of importance to International Law as they
are connected with the rank of the respective States.
Since States are sovereign, they can bestow any titles
they Uke on their heads. Thus, according to the German
Constitution of 1871, the Kings of Prussia had the title
' German Emperor ' ; the Enghsh monarchs have since
1877 borne the title ' Emperor or Empress of India ' ;
the Prince of Roumania assumed in 1881, that of Serbia
in 1882, that of Bulgaria in 1908, and that of Monte-
negro in 1910, the title ' King.' But no foreign State
is obliged to recognise such a new title, especially when
a higher rank would accrue to the State concerned in
consequence of such a new title for its head. In practice
such recognition will regularly be given when the new
title really corresponds with the size and the import-
ance of the State.^ Roumania, Serbia, Bulgaria, and
Montenegro had therefore no difficulty in obtaining
recognition as Kingdoms.
' See Treaty Ser. (1900), No. 9. reoognised by France till 1745, by
'" History, however, reports several Spain till 1759, nor by Poland till
oases where recognition was with- 1764. And the Pope did not reoog-
held for a long time. Thus the title nise the kingly title of Prussia,
' Emperor of Russia,' assumed by assumed in 1701, till 1786.
Peter the Great in 1701, was not
DIGNITY 203
With the titles of the heads of States are con-
nected predicates. Emperors and Kings have the predi-
cate ' Majesty,' ' Grand Dukes ' have the predicate
' Eoyal Highness/ Dukes that of ' Highness/ and
other monarchs that of ' Serene Highness.' The Pope
is addressed as ' Hohness ' {Sanctitas). Not to be
confounded with these predicates, which are recog-
nised by the Law of Nations, are predicates which
originally were bestowed on monarchs by the Pope and
which have no importance for the Law of Nations.
Thus the Kings of France called themselves Eex
Ghristianissimus or ' First-born Son of the Church,'
the Kings of Spain have called themselves since 1496
Rex Catholicus, the Kings of England since 1521
Defensor Fidei, the Kings of Portugal since 1748 Rex
Fidelissimus, and the Kings of Hungary called them-
selves from 1758 onwards Rex ApostoUcm.
Ill
DIGNITY
Vattel, ii. §§ 35-48— Lawrence, ' § 120— Phillimore, ii. §§ 27-43— Halleok, i.
pp. 137-152 — Taylor, § 162 — Wheaton, § 160 — Hershey, No. 147—
BUintsohU, §§ 82-83 — Hartmann,' § 15 — Heffter, §§ 32, 102, 103 —
Holtzendorfif in SoUzendorff, ii. pp. 64-69 — Ullmann, § 38 — Bonfils, Nos.
279-284— Despagnet, Nos. 184-186— Pradier-Fod6r6, ii. Nos. 451-483—
Rivier, i. pp. 260-262— Nys, ii. pp. 254-255— Oalvo, iii. §§ 1300-1302—
Fiore, i. Nos. 439-451— Martens, i. § 78.
§ 120. The majority of text-book writers maintain Dignity a
that there is a fundamental right of reputation and of Q"*''*y-
good name belonging to every State. Such a right,
however, does not exist, because no duty corresponding
to it can be traced within the Law of Nations. Indeed,
the reputation of a State depends just as much upon
behaviour as that of every citizen within its boundaries.'
204
POSITION OP THE STATES
A State which has a corrupt Government and behaves
unfairly and perfidiously in its intercourse with other
States will be looked down upon and despised, whereas
a State which has an uncorrupt Government and behaves
fairly and justly in its international dealings will be
highly esteemed. No law can give a good name and
reputation to a rogue, and the Law of Nations does not
and cannot give a right to reputation and good name
to such a State as has not acquired them through its
attitude. There are some States — nomina sunt odiosa !
— ^which indeed justly possess a bad reputation.
On the other hand, a State as a member of the Family
of Nations possesses dignity as an International Person.
Dignity is a quality recognised by other States, and it
adheres to a State from the moment of its recognition
till the moment of its extinction, whatever behaviour
it displays. Just as the dignity of every citizen within
a State commands a certain amount of consideration
on the part of fellow-citizens, so the dignity of a State
commands a certain amount of consideration on the
part of other States, since otherwise the difierent States
could not hve peaceably in the community which is
called the Family of Nations.
Conse- § 121. Since dignity is a recognised quahty of States
the Di>°^ as International Persons, all members of the Family of
nityof Nations grant reciprocally to one another by custom
certain rights and ceremonial privileges. These are
chiefly the right to demand — that their heads shall
not be libelled and slandered ; that their heads and
hkewise their diplomatic envoys shall be granted ex-
territoriahty and inviolability when abroad, and at
home and abroad in the official intercourse with repre-
sentatives of foreign States shall be granted certain
titles ; that their men-of-war shall be granted exterri-
toriahty when in foreign waters ; that their symbols of
authority, such as flags and coats of arms, shall not be
DiaNiTY 205
used improperly and shall not be treated with disrespect
on the part of other States. Every State must not
only itself comply with the duties corresponding to these
rights enjoyed by other States, but must also prevent its
subjects from such acts as violate the dignity of foreign
States, and must punish them for acts of that kind which
it could not prevent. The Municipal Laws of all States
must therefore provide for the punishment of those who
commit ofiences against the dignity of foreign States,^
and if the Criminal Law of the land does not contain
such provisions, this is no excuse for failure by the State
concerned to punish ofienders. But it must be empha-
sised that a State must prevent and punish such acts
only as really violate the dignity of a foreign State.
Mere criticism of pohcy, historical verdicts concerning
the attitude of States and their rulers, utterances of
moral indignation condemning iromoral acts of foreign
Governments and their monarchs need neither be sup-
pressed nor punished.
§ 122. Connected with the dignity of States are the Maritime
maritime ceremonials between vessels, and between ^o^iais.
vessels and forts, which belong to different States. In
former times discord and jealousy existed between the
States regarding such ceremonials, since they were
looked upon as means of keeping up the superiority of
one State over another. Nowadays, so far as the open
sea is concerned, they are considered as mere acts of
courtesy recognising the dignity of States. They are
the outcome of international usages, and not of Inter-
national Law, in honour of the national flags. They
are carried out by dipping flags or striking sails or
^ According to the Criminal Law with intent to disturb peace and
of England, ' everyone is guilty of friendship between the United King-
a misdemeanour who publishes any dom and the country to which any
libel tending to degrade, revile, or such person belongs.' See Stephen,
expose to hatred and contempt any A Digest of the Criminal Law,
foreign prince or potentate, am- Article 103.
bassador or other foreign dignitary,
206
POSITION OP THE STATES
firing guns.i But so far as the territorial maritime belt
is concerned, littoral States can make laws concerning
maritime ceremonials to be observed by foreign
merchantmen.^
IV
INDEPENDENCE AND TERRITORIAL AND PERSONAL
SUPREMACY
Vattel, i. Prdliminaires, §§ 15-17— Hall, § 10— Westlake, i. pp. 321-325—
Lawrence, §§ 58-61— Phillimore, i. §§ 144-149— Twiss, i. § 20— Halleok,
i. pp. 100-124— Taylor, § 160— Wheaton, §§ 72-75— Hershey, Nos. 133-
134— Bluntsohli, §§ 64-69— Hartmann, § 15— Heflfter, §§ 29 and 31—
Holtzendorff in Hbltzendorff, ii. pp. 56-60— Gareis, §§ 25-26— Ullmann,
§ 38— Bonfils, Nos. 253-271— Despagnet, Nos. 187-189— M^rignhac, i.
pp. 258-267— Pradier-Fod6r6, i. Nos. 287-332— Rivier, i. § 21— Nys, ii.
pp. 223-226— Calvo, i. §§ 107-109— Fiore, i. Nos. 372-427, and Code,
Nos. 185-392— Martens, i. §§ 74 and 75— Westlake, Papers, pp. 86-101.
independ- § 123. Sovereignty as supreme authority, which is
Territor- independent of any other earthly authority, may be
if Per^^^ ^^^*^ to have different aspects. As excluding depend-
sonai ence from any other authority, and in particular from
ma«y^as the authority of another State, sovereignty is independ-
^^Sove°- ^^^^' ■"■* ^® external independence with regard to the
reignty. Uberty of actiou outside its borders in the intercourse
with other States which a State enjoys. It is internal
independence with regard to the liberty of action of
a State inside its borders. As comprising the power
of a State to exercise supreme authority over all persons
and things within its territory, sovereignty is terri-
torial supremacy {dominium, territorial sovereignty). As
comprising the power of a State to exercise supreme
authority over its citizens at home and abroad, sove-
reignty is personal supremacy {imperium, political sove-
reignty).
* See Halleok, i. pp. 133-152, where the matter is treated with all details.
See also below, § 257. ' See below, § 187.
INDEPENDENCE AND SUPREMACY 207
For these reasons a State as an International Person
possesses independence and territorial and personal
supremacy. These three qualities are nothing else than
three aspects of the very same sovereignty of a State,
and there is no sharp boimdary hne between them.
The distinction is apparent and useful, although internal
independence is nothing else than sovereignty com-
prising territorial supremacy, but viewed from a difierent
point of view.
§ 124. Independence and territorial as well as per- Conse-
sonal supremacy are not rights, but recognised and independ-
therefore protected qualities of States as International enoe and
. , , Territor-
Persons. The protection granted to these qualities by lai and
the Law of Nations finds its expression in the right of fu™°"*'
every State to demand that other States abstain them- "^oy.
selves, and prevent their agents and subjects, from
committing any act which constitutes a violation of its
independence or its territorial or personal supremacy.
In consequence of its external independence, a State
can manage its international affairs according to dis-
cretion, especially enter into alhances and conclude
other treaties, send and receive diplomatic envoys,
acquire and cede territory, make war and peace.
In consequence of its internal independence and
territorial supremacy, a State can adopt any constitu-
tion it likes, arrange its administration in a way it
thinks fit, enact such laws as it pleases, organise its
forces on land and sea, build and pull down fortresses,
adopt any commercial poHcy it hkes, and so on. Accord-
ing to the rule, quidquid est in territorio est etiam de
territorio, aU individuals and all property within the
territory of a State are under its dominion and
sway, and even foreign individuals and property fall
at once under the territorial supremacy of a State when
they cross its frontier. Aliens residing in a State can
therefore be compelled to pay rates and taxes, and to
208
POSITION OF THE STATES
serve in the poKce under the same conditions as citizens
for the purpose of maintaining order and safety. But
ahens may be expelled, or not received at all. On the
other hand, hospitaUty may be granted to them what-
ever act they have committed abroad, provided they
abstain from making the hospitable territory the basis
for attempts against a foreign State. And a State can
through naturahsation adopt foreign subjects residing
on its territory without the consent of the home State,
provided the individuals themselves give their consent.
In consequence of its personal supremacy, a State
can treat its subjects according to discretion, and it
retains its power even over such subjects as emigrate
without thereby losing their citizenship. A State may
therefore command its citizens abroad to come home
and fulfil their mihtary service, may require them to pay
rates and taxes for the support of the home finances,
may ask them to comply with certain conditions in
case they desire marriages concluded abroad or wiUs
made abroad to be recognised by the home authorities,
and can punish them on their return for crimes they
have committed abroad.
Viola- § 125. The duty of every State itself to abstain, and
independ- ^^ prcveut its ageuts and subjects, from copimitting any
enoe and act which Constitutes a violation ^ of another State's
Territor- . . . ,
iaiand mdependeuce or territorial or personal supremacy is
Supre"* correlative to the corresponding right possessed by the
™a<'y- other State. It is impossible to enumerate all such
actions as might constitute a violation of this duty.
But it is of value to give some illustrative examples.
Thus, in the interest of the independence of other
States, a State is not allowed to interfere in the
management of their international affairs, nor to
prevent them from doing or to compel them to do
certain acts in their international intercourse. Further,
» See below, § 155.
INDEPENDENCE AND SUPREMACY 209
in the interest of the territorial supremacy of other
States, a State is not allowed to send its troops,
its men-of-war, or its police forces into or through
foreign territory, or to exercise an act of administration
or jurisdiction on foreign territory, without permission.-'^
Again, in the interest of the personal supremacy of other
States, a State is not allowed to naturalise aUens residing
on its territory without their consent,^ nor to prevent
them from returning home for the purpose of fulfilling
miUtary service or from paying rates and taxes to their
home State, nor to incite citizens of foreign States to
emigration.
§ 126. Independence is not boundless Hberty for a Restno-
State to do what it Ukes without any restriction what- iJXp'^nd"
ever. The mere fact that a State is a member of the ®°°^-
Family of Nations restricts its Hberty of action with
regard to other States, because it is bound not to inter-
vene in the affairs of other States. And it is generally
admitted that a State can through conventions, such as
a treaty of alKance or neutraUty and the like, enter into
many obhgations which hamper it more or less in the
management of its international affairs. Independence
is a question of degree, and it is therefore also a question
of degree whether the independence of a State is de-
stroyed or not by certain restrictions. Thus it is gene-
rally admitted that States under suzerainty or under
protectorate are so much restricted that they are not
fully independent, but half sovereign. And the ^ame
is the case with the member-States of a Federal State
which are part sovereign. On the other hand, the
restrictions connected with the neutrahsation of States
* But neighbouring States very from Basle to Germany,
often give such permission to one
another. Switzerland, for instance, " See, however, below (§ 299),
allows German custom-house ofi&cers where the fact is stated that some
to be stationed on two railway States naturalise an alien through
stations of Basle for the purpose of the very fact of his taking domicile
examining the luggage of travellers on their territory.
VOL. I. O
210 POSITION OP THE STATES
do not, according to the correct opinion,^ destroy
their independence, although they cannot make war
except in self-defence, cannot conclude aUiances, and
are in other ways hampered in their liberty of action.
From a political and a legal point of view it is of great
importance that the States imposing and those accepting
restrictions upon independence should be clear in their
intentions. For the question may arise whether these
restrictions make the State concerned a dependent one.
Thus through Article 4 of the Convention of London
of 1884, between Great Britain and the former South
African Republic, stipulating that the latter should
not conclude any treaty with any foreign State, the
Orange Free State excepted, without approval on the
part of Great Britain, the Repubhc was so much re-
stricted that Great Britain considered herself justified
in defending the opinion that the Repubhc was not
an independent State, although the Repubhc itself and
many writers were of a difierent opinion.^
Thus, to give another example, through Article 1 of
the Treaty of Havana ^ of May 22, 1903, between the
United States of America and Cuba, stipulating that
Cuba shall never enter into any such treaty with a
foreign Power as will impair, or tend to impair, the
independence of Cuba, and shall abstain from other
acts, the Republic of Cuba is so much restricted that
some writers maintain — wrongly, I believe — that Cuba
is under an American protectorate and only a half
sovereign State.*
^ See above, § 97. independent analysis of the relations
' It is of interest to state the fact between Great Britain and the Be-
that, before the last phase of the public.
conflict between Great Britain and so nvj-t jTr>/-tr.jD
the Republic, influential Continental JJ''^ Martens, N.R.O., 2nd Ser.
writers stated the suzerainty of . p. .
Great Britain over the Republic. * As regards the international
See Rivier, i. p. 89, and Holtzendorff position of Cuba, see Whitoomb,
in Holtzendorff, ii. p. 115. West- La Situation intemationale de Cuba
lake. Papers, pp. 419-460, gives an (1905), and Ileishey, p. 108, n. 28.
INDEPENDENCE AND SUPREMACY 211
Again, the Republic of Panama is, by the Hay-Varilla
Treaty of Washington ^ of 1903, likewise burdened with
some restrictions in favour of the United States, but
here, too, it would be wrong to maintain that Panama
is imder an American protectorate. Restrictions in
favo\ir of the United States, imposed upon San Domingo
by a treaty of February 8, 1907,^ and upon Haiti by a
treaty of September 16, 1915,^ raise similar questions.
§ 127. Just like independence, territorial supremacy Restrfo-
does not give a boimdless liberty of action. Thus, byTerritor°"
customary International Law every State has a right '*^ ^"p™"
to demand that its merchantmen can pass through the
maritime belt of other States. Thus, further, naviga-
tion on so-caUed international rivers in Europe must
be open to merchantmen of all States. Thus, thirdly,
foreign monarchs and envoys, foreign men-of-war, and
foreign armed forces must be granted exterritoriahty.
Thus, fourthly, through the right of protection over
citizens abroad, which is held by every State according
to customary International Law, a State cannot treat
foreign citizens passing through or residing on its terri-
tory arbitrarily according to discretion as it might treat
its own subjects ; it cannot, for instance, compel them
to serve * in its army or navy. Thus, fifthly, a State,
in spite of its territorial supremacy, is not allowed to
alter the natural conditions of its own territory to the
disadvantage of the natural conditions of the territory
of a neighbouring State — for instance, to stop or to
' See Martens, N.B.G., 2nd Ser. lowing at the second Hague Peace
xxxi. p. 599. Conference of 1907 : ' Nous recon-
« A.J., i. (1907), Supplement, p. naissonsqu'enr^glegto^raleleneutre
23. See also A.J., xi. (1917), p. 394. f^ «^f?iP* ^f .^^f .^f-^""?, mil'taire
a ^ r ,,,^J< c, , ^ dans FEtat oil il rfeide. Cependant
oL ' ""' Supplement, p. j^ns les colonies britanniques et,
'^*- dans une certaine mesure, dans tons
* Great Britain would seem to les pays en voie de formation, la
uphold an exception to this rule, for situation est tout autre et la popula-
Lord Reay, one of her delegates, tion toute enti^re, sans distinction
declared — see DeuxUme Confirence de nationality, peut 6tre appel^e sous
intemationah de la Paix, ActeB et les armes pour d^fendre leurs foyers
Documents, vol. iii. p. 41 — the fol- menaces.'
212
POSITION OP THE STATES
divert the flow of a river which runs from its own into
neighbouring territory. ^ Thus, to give another and
sixth example, a State is not allowed to permit on its
territory a conspiracy or the preparation of a hostile
expedition ^ against another country.
. In contradistinction to these restrictions by the
customary Law of Nations, there are obUgations of many
a kind which a State can assume through treaties, with-
out thereby losing its internal independence and terri-
torial supremacy. Thus France by three consecutive
treaties of peace — namely, that of Utrecht of 1713, that
of Aix-la-Chapelle of 1748, and that of Paris of 1763—
entered into the obUgation to pull down and not to re-
build the fortifications of Dunkirk.^ Again, Napoleon i.
imposed after the Peace of Tilsit of 1807 upon Prussia
the restriction * not to keep more than 42,000 men under
arms during ten years from January 1, 1809 ; and after
the World War the AlHes imposed upon Germany the
restriction not to keep more than 100,000 men under
arms, nor a navy larger than necessary for coast defence
and purposes of police, nor any miUtary or naval air
forces. Restrictions were hkewise placed on the armed
forces of Austria and Bulgaria, and wiU doubtless be
placed on those of Hungary and Turkey. Again, Article
29 of the Treaty of Berhn of 1878 imposed upon Monte-
negro the restriction not to possess a navy.® There is
hardly a State in existence which is not in one point
or another restricted in its territorial supremacy by
treaties with foreign Powers.
' See below, § 178o. A.J., vi. * This restriotion was agreed upon
(1912), pp. 478-485, gives an in- in secret articles of the Franoo-
teresting account concerning an Prussian Convention of September
attempted interference with the 8, 1808. See Clerq, Becv^il des
natural course of the River Rio TraMs conclus par la France {lS6i),
Grande. vol. ii. p. 272.
« See Curtis in A.J., viii. (1914),
pp. 1-37, 224-255. ' It is doubtful whether this re-
' This restriotion was abolished by striotion was still in force at the out-
Article 17 of the Treaty of Paris of break of the World War ; see below,
1783. § 258.
INDEPENDENCE AND SUPREMACY 213
§ 128. Personal supremacy does not give a bound- Restno-
less liberty of action either. Although, the citizens of Pe°sonai"
a State remaia under its power when abroad, such ^"^^y '
State is restricted in the exercise of this power with
regard to all those matters in which the foreign State
on whose territory these citizens reside is competent
in consequence of its territorial supremacy. The duty
to respect the territorial supremacy of a foreign State
must prevent a State from doing all acts which, although
they are according to its personal supremacy within
its competence, would violate the territorial supremacy
of this foreign State. Thus, for instance, a State is
prevented from requiring such acts from its citizens
abroad as are forbidden to them by the Municipal Law
of the land in which they reside, and from ordering them
not to commit such acts as they are bound to commit
according to the Municipal Law of the land in which
they reside.^
But a State may also by treaty obHgation be for
some parts restricted in its liberty of action with regard
to its citizens. Thus Articles 5, 27, 35, and 44 of the
Treaty of Berhn of 1878 restricted the personal supre-
macy of Bulgaria, Montenegro, Serbia, and Roumania
in so far as these States were thereby obhged not
to impose any religious disabilities on any of their
subjects.^
' For example, in time of war, a the Serb-Croat-Slovene State under-
belligerent is not entitled to pro- taking to assure full and complete
hibit one of its nationals, resident in protection of life and liberty to all
a neutral State under the laws of its inhabitants without distinction
which debts must be paid, from pay- of birth, nationality, language, race,
ing a debt due to a national of the or religion. (Treaty Ser. (1919),
other belligerent. No. 17, Cmd. 461. ) As to Roumania,
* See above, § 73. By a treaty see now the treaty concluded on
concluded on September 10, 1919, December 9, 1919, between the
between the United States of Amer- Principal Allied and Associated
ica, the British Empire, France, Powers and Roumania (Treaty Ser.
Italy and Japan, and the Serb- (1920), No. 6, Cmd. 588) ; and as to
Croat-Slovene State, the restrictions Bulgaria, the Treaty of Peace with
imposed upon Serbia by Article 35 of Bulgaria, Articles 49-57. See also
the Treaty of Berlin were abrogated, below, § 568h.
214 POSITION OF THE STATES
V
SELE-PEESERVATION
Vattel, ii. §§ 49-53, 119-121— Hall, §§ 8, 83-86— Westlake, i. pp. 312-317—
Phillimore, i. §§ 210-220— Twiss, i. §§ 100-112— Halleok, i. pp. 119-124
—Taylor, §§ 401-409— Wheaton, §§ 61-62— Hershey, No. 132— Moore,
ii. §§ 215-219— Hartmaun, § 15— Heffter, § 30— Holtzendorff in Holtzen-
dorff, ii. pp. 51-56— Gareis, § 25— Liszt, § 7— Ullmann, § 38— Heilborn,
pp. 280-299— Bulmerinoq, § 22 — Bonfils, Nos. 242-252 — Despagnet,
Nos. 172-175— Mferignhao, i. pp. 239-245— Pradier-Eod^r^, i. Nos. 211-
286— Rivier, i. § 20— Nys, ii. pp. 218-221— Calvo, i. §§ 208-209— Fiore,
i. Nos. 452-466— Martens, i. § 73— Westlake, Papers, pp. 110-125—
Oavaretta, Lo Stato di Necesaita net Diritto intemazitmcde (1910) —
Cybichowski, Stvdien zum intemationalen Reeht (1912), pp. 21-71 —
Vissoher in B.G., xxiv. (1917), pp. 74-108.
Seif-pre- R 129. From the earliest time of the existence of
servation " e -kt ■ ip • -tt
an Excuse the Law 01 Nations self-preservation was considered
tions.'° ^' sufficient justification for many acts of a State which
violate other States. Although, as a rule, all States
have mutually to respect one another's personahty,
and are therefore bound not to violate one another, as
an exception, certain violations of another State com-
mitted by a State for the purpose of self-preservation
are not prohibited by the Law of Nations. Thus, self-
preservation is a factor of great importance for the
position of the States within the Family of Nations,
and most writers maintain that every State has a funda-
mental right of self-preservation.^ But nothing of the
kind is actually the case, if the real facts of the law are
taken into consideration. If every State really had a
right of seK-preservation, all the States would have the
duty to admit, suffer, and endure every violation done to
one another in self-preservation. But such duty does not
exist. On the contrary, although self-preservation is
in certain cases an excuse recognised by International
^ This right was formerly fre- interests in case of a oonfliot between
quently called Droit de Convenance, its own and the interests of another
and was said to consist in the right State. See Heffter, § 26.
of every State to act in favour of its
SELF-PRESERVATION 215
Law, no State is obKged patiently to submit to viola-
tions done to it by such other State as acts in self-pre-
servation, but can repulse them. It is a fact that in
certain cases violations committed in self-preservation
are not prohibited by the Law of Nations. But, never-
theless, they remain violations, may therefore be re-
pulsed, and indemnities ^ may be demanded for damage
done. Self-preservation is consequently an excuse,
because violations of other States are in certain excep-
tional cases not prohibited when they are conunitted
for the purpose, and in the interest, of self-preservation,
although they need not be patiently suffered and endured
by the States concerned.
§ 130. It is frequently maintained that every viola- What
tion is excused so long as it was caused by the motive teU-pL-
of self-preservation ; but it becomes more and more nervation
recognised that violations of other States in the in- Excused,
terest of self-preservation are excused in cases of neces-
sity only. Only such acts of violence in the interest
of self-preservation are excused as are necessary
ia self-defence, because otherwise the acting State
would have to suffer, or have to continue to suffer, a
violation against itself. If an imminent violation, or
the continuation of an already commenced violation,
can be prevented and redressed otherwise than by a
violation of another State on the part of the endangered
State, this latter violation is not necessary, and there-
fore not excused and justified. ^ When, to give an
example, a State is informed that on neighbouring terri-
tory a body of armed men is being organised for the
purpose of a raid into its territory, and when the danger
can be removed through an appeal to the authorities of
' See below, § 154 n. as a necessity of self-defence which
is ' instant, overwhelming, and leav-
' Mr. Webster, the Amerioaiv ing no choice of means, and no
Secretary of State, defined the moment for deliberation.' See
necessity which would be an excuse Moore, ii. § 217, p. 412.
216
POSITION OF THE STATES
the neighbouring country, no case of necessity has arisen.
But if such an appeal is frmtless or not possible, or if
there is danger in delay, a case of necessity arises, and
the threatened State is justified in invading the neigh-
bouring country and disarming the intending raiders.
And I beheve that the term self-defence must not
here be understood in its narrower sense, meaning
defence against an act of individuals only, but also
in its wider sense meaning the aversion of a disaster
caused or threatened by the work of nature. For in-
stance, if a river flowing successively through the terri-
tories of two States is provided with a lock in the lower
State, and if, through a sudden rise of the upper part
of the river, the territory of the upper State be danger-
ously flooded, and if there be not sufficient time to
approach the local authorities, it would be an excusable
act on the part of the upper State to send some of its
own officials into the lower State to open the lock.
The reason of the thing, of course, makes it necessary
for every State to judge for itself whether a case of
necessity in self-defence has arisen. On the one hand,
therefore, it is impossible to lay down a hard and fast
rule regarding the question when a State may or may
not have recourse to self-help which violates another
State, and on the other hand, the door is open to abuse.
Everything depends upon the circumstances and con-
ditions of the special case, and it is therefore of value
to give some historical examples.^
§ 131. After the Peace of Tilsit of 1807, the British
Government ^ was cognisant of a secret article of this
treaty, according to which Denmark should, under
' See Cybiohowski, op. cit., pp. tory of Europe, etc., ed. 1849,
46-56, where a number of examples viii. pp. 246-267 ; Holland Rose,
are discussed which are not men- Napoleonic Studies (1904), pp. 133-
tioned here. 152 ; and the same writer's paper in
the Traniactions of the Boyal Sis-
' I follow Hall's (§ 85) summary torical Society, New Ser. xx. (1906),
of the facts. See also Alison, His- pp. 61-77.
SELF-PBESEEVATION 217
certain circumstances, be coerced into declaring war Case of
against Great Britain, and France should be enabled Danish
to seize the Danish fleet so as to make use of it against ^^|^*
Great Britain, This plan, when carried out, would
have endangered the position of Great Britain, which
was then waging war against France. As Denmark
was not capable of defending herself against an attack
of the French army in North Germany under Berna-
dotte and Davoust, who had orders to invade Denmark,
the British Government requested Denmark to deKver
up her fleet to the custody of Great Britain, and pro-
mised to restore it after the war. And at the same time
the means of defence against French invasion and a
guaranty of her whole possessions were offered to
Denmark by England. Denmark, however, refused to
comply with the British demands; whereupon the British
considered a case of necessity in self-def enpe had arisen,
shelled Copenhagen, and seized the Danish fleet. ^
§ 132. Another example is supplied by the case of Case of
AmeHa Island. ' Ameha Island, at the mouth of St. isUmdT
Mary's River, and at that time in Spanish territory, (i^^'^'-
was seized in 1817 by a band of buccaneers, under the
direction of an adventurer named M'Gregor, who in
the name of the insurgent colonies of Buenos Ajnces
and Venezuela preyed indiscriminately on the com-
merce of Spain and of the United States. The Spanish
Government not being able or willing to drive them off,
and the nuisance being one which required immediate
action, President Monroe called his Cabinet together
in October 1817, and directed that a vessel of war
should proceed to the island and expel the marauders,
destroying their works and vessels," ^
* The action of England in this 'T searches^, ii. pp. 37-41, who dis-
ease, while condemned by most Con- iij approves of it, as also does Walker,
tinental writers, is approved of by ^ Science, p. 138.
many British and American publi- m ■ ^ See Wharton, i. § 50a, and
cists. See, however, Reddie, iJe-;"-. Moore, ii. § 216.
218 POSITION OF THE STATES
Case of § 133. In I837j during the Canadian rebellion, several
Oa/roiinR hundreds of insurgents got hold of Navy Island on the
(1837). Canadian side of the River Niagara and chartered a
vessel, the Caroline, to carry supphes from the port of
Schlosser, on the American side of the river, to Navy
Island, and from there to the insurgents on the
mainland of Canada. The Canadian Government,
informed of the imminent danger, on December 29,
1837, sent across the Niagara, to the port of Schlosser, a
British force which obtained possession of the Caroline,
seized her arms, set her on fire, and then sent her adrift
down the falls of Niagara. During the attack on the
Carolina two Americans were killed and several others
were wounded. The United States complained of this
British violation of her territorial supremacy, but Great
Britain asserted that her act was necessary m self-
preservation, since there was not sufficient time to
prevent the imminent invasion of her territory through
apphcation to the United States Government. The
latter admitted that the act of Great Britain would have
been justified if there had really been necessity in self-
defence, but denied that, in fact, such necessity existed
at the time. Nevertheless, since Great Britain had
apologised for the violation of American territorial
supremacy, the United States Government did not
insist upon further reparation.^
§ 133a. Although, in October 1915, the United States
had recognised General Carranza's Government as the
' See Wharton, i. § 50c, Moore, vessel (see Moore, ii. § 309, pp. 895-
ii. § 217, and Hall, § 84. With the 903). That a vessel sailing under
case of The Caroline is connected the another State's flag can nevertheless
case of M'Leod, which will be dis- be seized on the high seas in case
cussed below, § 446. Hall, § 86, she is sailing to a port of the cap-
Martens, i. § 73, and others quote turing State for the purpose of an
also the case of The Virginius (1873) invasion or bringing material help to
as an example of necessity of self- insurgents, there is no doubt. No
preservation, but it seems that the better case of necessity of self-pre-
Spanish Government did not plead servation could be given, since the
self-preservation but piracy as jus- danger is imminent and can be frus-
tification for the capture of the trated only by capture of the vessel.
SELTT-PRESBRVATION 219
de facto Government of Mexico, Carranza was not able Amerioan
to restore order in the northern districts of Mexico, Expedi-
where General Villa still disputed his authority. On*i°X*°
March 9, 1916, Villa, at the head of fifteen hundred men, (i9i6).
invaded American territory, and, attacking the city
of Columbus, set on fire a number of buildings, and
killed several American citizens, before he was driven
back into Mexican territory. Since Carranza had not
actually succeeded in establishing his authority in
North Mexico, President Wilson, on March 10, 1916,
sent an expeditionary force into Mexico for the purpose
of pursuing Villa, punishing him for the violation of
American territorial supremacy,^ and preventing further
attacks. On June 21, 1916, a small part of the American
force was attacked at Carrizal, some sixty miles south
of the American boundary hue, by troops of Carranza,
because, in spite of warm'ng, it attempted to pass further
eastward into Mexican territory. During the attack
twelve Americans were killed and fourteen captured,
whereas the Mexican losses were forty-six killed and
thirty-nine wounded. President Wilson at once de-
manded that the American prisoners should be released,
and Carranza complied with this demand on June 28.
Subsequently an American-Mexican Joint Commission
was appointed for the purpose of suggesting measures
for the establishment of order on the American-Mexican
frontier. But the labour of this Commission was in
vain, because Carranza refused to ratify the protocol
signed by the Commission. Nevertheless, the American
troops were withdrawn in January 1917.
§ 1336. In June 1919 another American-Mexican The Ooou-
case occurred.^ General Villa was still disputing the juar°e" °
authority of President Carranza, and some of his (i^^^)-
soldiers continuously fired into El Paso, a town on the
1 See Soott and Pinch in A.J., x. (1916), pp. 337 and 890, and xi. (1917),
pp. 399-406. ' A.J., xiii. (1919), p. 557.
220
POSITION OF THE STATES
American side of the border. To stop the nuisance
American troops crossed into Mexican territory, and in
order to frustrate the imminent capture of the town of
Juarez by General Villa's forces, they occupied the town
themselves. As, however, the forces of Villa dispersed
in consequence of the American action, the American
troops evacuated Juarez shortly afterwards, and Presi-
dent Carranza was notified that the United States
expected that he would take aU necessary measures to
prevent the loss of American lives and destruction of
property in consequence of the action of the Vilhstas.
The Ger- § 133c. During the night of August 1, 1914, after
don of ^°^ having declared war on Russia, but before her declara-
Luxem- tiou of War upou France, Germany marched troops into
Belgium neutralised Luxemburg and occupied the country. At
'^®^*'' seven o'clock on the following evening, the German
Minister at Brussels presented an ultimatum demand-
ing from Belgium the right of passage for German troops
through her territory, but threatening, in the event of
refusal, to treat Belgium as an enemy. As Belgium
refused to accede to the demands of Germany, German
troops invaded Belgium on August 4, and, in spite of
the heroic resistance of the Belgian army, almost
the whole of Belgium was conquered, and remained
under German occupation throughout the World War.
Germany justified this violation of the permanent neu-
trahty of Luxemburg, as well as Belgium, by pointing
out that she was threatened by a Russian attack on
one of her frontiers and by a French attack on another,
and that necessity in self-preservation compelled her
armies to break through Luxemburg and Belgium for
the purpose of aiming a decisive blow at France. Out-
side Germany, it is almost universally recognised that
this plea of necessity in self-preservation was a mere
pretext, and was not justified by the facts of the case.
Germany did not act in self-preservation at all, because
INTERVENTION 221
she was not attacked, and no attack was threatening.
|t was Germany who declared war upon Russia and
France, and she attacked France through Belgium,
because she thought in this way she would be able
quickly to defeat France, and then to turn all her might
against Russia.^
VI
INTEEVENTION
Vattel, ii. §§ 54-62— Hall, §§ 88-95— Westlake, i. pp. 317-321— Lawrence,
§§ 62-70— PUUimore, i. §§ 390-415as— Halleck, i. pp. 102-124— Taylor,
§§ 410-430— Walker, § 7— Hershey, Nos. 135-145— Whartoil, i. §§ 45-72
—Moore, vi. §§ 897-926— Wheaton, §§ 63-71— Bluntachli, §§ 474-480—
Hartmann, § 17 — Heflfter, §§ 44-46 — Geffcken in Holtzevdorff, iv. pp.
131-168— Gareis, § 26— Liszt, § 7— Ullmann, §§ 163-164— Bonfils, Nos.
295-323— Despagnet, Nos. 193-216— M^rignhac, i. pp. 284-310— Pradier-
Fod6r6, i. Nos. 354-441— Rivier, i. § 31— Nys, ii. pp. 226-234, 242-247
— Oalvo, i, §§ 110-206— Fiore, i. Nos. 561-608, and Code, Nos. 548-562
— Martens, i. §§ 76-77 — Bernard, On the Principle of Non-intervention
(1860) — Hautefeuille, Le Principe de Non-intervention (1863) — Stapleton,
Iniervention amd Non-intervention, or the Foreign Policy of Great Britain
from 1790 to 1865 (1866)— Geflfoken, Das Recht der Intervention (1887)
— Kebedgy, De I' Intervention (1890) — Floeoker, De l' Intervention en
Droit international (1896) — Drago, Cdbro coercitivo de Deudas publicas
(1906) — Moulin, La Doctrine de Drago (1908) — Waohter, Die vGlherrecht-
liche Intervention als Mittel der Selhathilfe (l9ll) — Oavaglieri, (i'/Tiier-
vemto nella sua Definizicme giuridica (1913) — Sohoenborn, Die Besitzv/ng
von Veracruz (1914) — Hodges, The Doctrine of Intervention (1915).
§ 134. Intervention is dictatorial interference by a Conoep-
State in the afiairs of another State for the purpose of character
maintaining or altering the actual condition of things. °* ^°*®'''
„ , . " . °, 1 1 1 . , , . , ° vention.
ouch intervention can take place by right or without
a right, but it always concerns the external independ-
' It is impossible in a general violation. Readers must be referred
treatise on International Law to to the excellent work of Charles De
enter into a detailed discussion of Vissoher, La Belgique et les Juriates
the German violation of the per- allemanda (1916). An English trans-
manent neutrality of Luxemburg lation of this work was published
and Belgium, and of the various under the title Belgium's Case —
attempts on the part of numerous where is to be found a good biblio-
German writers, who mostly con- graphy.
tradiot one another, to justify this
222
POSITION OP THE STATES
ence or the territorial or personal supremacy of the
State concerned, and the whole matter is therefore of
great importance for the position of the States within
the Family of Nations. That intervention is, as a rule,
forbidden by the Law of Nations which protects the
International Personality of the States, there is no
doubt. On' the other hand, there is just as little doubt ^
that this rule has exceptions, for there are interventions
which take place by right, and there are others which,
although they do not take place by right, are never-
theless admitted by the Law of Nations, and are excused
in spite of the violation of the Personality of the respec-
tive States which they involve.
Intervention can take place in the external as well
as in the internal afiairs of a State. It concerns, ia the
first case, the external independence, and in the second
either the territorial or the personal supremacy. But
it must be emphasised that intervention proper is always
dictatorial interference, not interference pure and simple.^
Therefore intervention must neither be confounded with
good offices, nor with mediation, nor with intercession,
nor with co-operation, because none of these imply a
dictatorial interference. Good offices is the name for
such acts of friendly Powers interfering in a conffict
between two other States as tend to call negotiations into
existence for the peaceable settlement of the conflict,
and mediation is the name for the direct conduct on
the part of a friendly Power of such negotiations.^
Intercession is the name for interference consisting
in friendly advice given or friendly ofiers made with
regard to the domestic affairs of another State. And,
lastly, co-operation is the appellation of such inter-
' The so-oalled doctrine of non- without any legal basis whatever,
intervention as defended by some 2 a/To^,, ,,„,•<.„_ i ^i
Italian writers (see Fiore 1. No. 565). ^,, fClo^^l °°"^'^"*^^ °°'"-
who deny that intervention is ever
justifiable, is a political doctrine ' See below, vol. ii. § 9.
INTERVENTION 223
ference as consists in, help and assistance lent by one
State to another at the latter 's request for the purpose
of suppressing an internal revolution. Thus, for example,
in 1826, at the request of the Portuguese Grovernment,
Great Britain sent troops to Portugal in order to assist
the Government against a threatening revolution on the
part of the followers of Don Miguel ; and, in 1849, at
the request of Austria, Eussia sent troops into Hungary
to assist Austria in suppressing the Hungarian revolt.
§ 135. It is apparent that such interventions as take interven-
place by right must be distinguished from others. Where- R°ghtf
ever there is no right of intervention, although it may
be admissible and excused, an intervention violates
either the external independence or the territorial or
the personal siipremacy. But if an intervention takes i^
place by right, it never constitutes such a violation, |
because the right of intervention is always based on a '
legal restriction upon the independence or territorial or \
personal supremacy of the State concerned, and because
the latter is in duty bound to submit to the intervention.
Now a State may have a right of intervention against
another State, mainly for six reasons : ^ -
(1) A suzerain State has a right to intervene in many
affairs of the vassal, and a State which holds a protec-
torate has a right to intervene in all the external afEairs
of the protected State.
(2) If an external affair of a State is at the same time
by right an affair of another State, the latter has a right
to intervene Jn case the former deals with that affair
unilaterally.
The events of 1878 provide an illustrative example.
Russia had concluded the preliminary Peace of San
Stefano with defeated Turkey ; Great Britain protested
because the conditions of this peace were inconsistent
with the Treaty of Paris of 1856 and the Convention of
' The enumeration is not intended to bg exhaustive.
224
POSITION OP THE STATES
Loudon of 1871, and Russia agreed to the meeting of
the Congress of Berhn for the purpose of arranging
matters. Had Russia persisted in carrying out the
preliminary peace, Great Britain, as well as other signa-
tory Powers of the Treaty of Paris and the Convention
of London, doubtless possessed a right of intervention.
Another example is provided by the Bryan-Chamorro
Treaty between the United States and Nicaragua of
August 5, 1914, granting to the former an exclusive
option to construct another interoceanic canal across
Nicaraguan territory, and a naval base in the Gulf of
Fonseca, and ceding to the former Great Corn Island
and Little Corn Island in the Caribbean Sea. The
Repubhcs of Costa Rica, San Salvador, and Honduras
protested against this treaty on the ground that it
violated treaty rights previously acquired by them.
Costa Rica and San Salvador brought an action against
Nicaragua before the Central American Court of Justice
for the purpose of vindicating their rights, and the
Court, on September 30, 1916, and March 9, 1917, pro-
nounced judgment in favour of Nicaragua.^
(3) If a State which is restricted by an international
treaty in its external independence or its territorial or
personal supremacy does not comply with the restric-
tions concerned, the other party or parties have a right
to intervene. Thus the United States of America, in
1906, exercised intervention in Cuba in conformity with
Article 3 of the Treaty of Havana ^ of 1903, which
stipulates :( ' The Government of Cuba consents that
the United States may exercise the right to intervene
for the preservation of Cuban independence, the main-
' See A.J., X. (1916), pp. 344-351, those Powers which guaranteed the
and xi. (1917), pp. 156-164, 181-229, integrity of Norway under the con-
674-730, and below, § 522 n. dition that she did not cede any
* See Martens, N.R.O., 2nd Ser. part of her territory to any foreign
xxxii. p. 79. Even if no special Power acquired a right to inter-
right of intervention is stipu- vene in case such a cession were
lated, it nevertheless exists in such oonteraplated, although the treaty
oases. Thus — see below, § 574 — concerned did not stipulate this.
INTERVENTION 225
tenance of a Government adequate for the protection of
life, property, and individual liberty. . . .' Likewise
the United States of America, in 1904, exercised inter-
vention in Panama in conformity with Article 7 of the
Treaty of Washington ^ of 1903, which stipulates : ' The
same right and authority are granted to the United
States for the maintenance of pubUc order in the cities
of Panama and Colon, and the territories and harboiirs
adjacent thereto in case the EepubKc of Panama should
not be, in the judgment of the United States, able to
maintain such order.' And Great Britain, France,
and Russia, the guarantors of the independence of
Greece, exercised intervention in Greece during the
World War in 1916 and 1917 for the purpose of re-
establishing constitutional government in conformity
with Article 3 of the Treaty of London of 1863,^ which
stipulates : ' Greece, under the sovereignty of Prince
WiUiam of Denmark and the guarantee of the three
Courts, forms a monarchical, independent, and con-
stitutional State.' King Constantine had to abdicate,
and his second son, Alexander, was instituted as King
of the Hellenes.^
(4) If a State in time of peace or war violates such
rules of the Law of Nations as are universally recognised
by custom or are laid down in law-making treaties, other
States have a right to intervene, and to make the delin-
• See Martena, N'.B.G., 2nd Ser. ing such State from taking sides
xxxi. (1905), p. 599. with his enemy, although he has no
* See Martens, N.B.O., xvii. part right to demand that such State
ii. p. 79; andIonin^.y^,xii. (1918), should become his ally. Thus in
pp. 562-588. 1916 during the World War, Great
' The author had prepared the Britain, France, and Eussia justified
following paragraph for insertion in several acts of coercion against
this edition ; but against it he had Greece by referring to the fact that,
written a note that the question as they were guarantors of the in-
required further consideration. It dependence of Greece, the position
must not therefore be regarded as of Greece during the war could not
being necessarily his fixed and final be compared with the position of
opinion. ' In case he is a belligerent, other neutral States. However, it
the guarantor of the independence of is difficult to fix the extent of the
another State has a right of inter- right of intervention which a guar-
vention for the purpose of prevent- antor no doubt possesses.'
VOL. I. P
226
POSITION OF THE STATES
quent submit to the rules concerned. If, for instance,
a State undertook to extend its jurisdiction over the
merchantmen of another State on the high seas, not
only would this be an affair between the two States
concerned, but all other States would have a right to
intervene because the freedom of the open sea is a uni-
versally recognised principle. Or if a State which is a
party to the Hague Regulations concerning Land War-
fare were to violate one of these regulations, all the
other signatory Powers would have a right to intervene.
(5) A State that has guaranteed by treaty the form
of government of a State, or the reign of a certain dynasty
over the same, has a right ^ to intervene in case of change
of form of government or of dynasty, provided the
treaty of guaranty was concluded between the respective
States and not between their monarchs personally.
(6) The right o^ protection ^ over citizens abroad,
which a State holds, may cause an intervention by right
to which the other party is legally bound to submit.
And it matters not whether protection of the hfe,
security, honour, or property of a citizen abroad is
concerned.
The so-called Drago ^ Doctrine, which asserts the rule
that intervention is not allowed-lor the purpose of
making a State pay its pubUc debts, is unfounded, and
' But thia is not generally reoog- coercitivo de Deudaa publiccu (1906) ;
nised ; see, for instance, Hall, § 93, Barclay, Problems of International
who denies the existence of such a Practice, etc. (1907), pp. 115-122;
right. I do not see the reason why Mouiin, La Doctrine de Drago{lQOS);
a State should not be able to under- Vivot, La Doctrina Drago (1911) ;
take the obligation to retain a certain Borchard, §§ 119-126, 371-378, and
form of government or dynasty. pp. 861-864'; Higgins, The Hague
That historical events can justify Peace Conferences, etc. (1909), pp.
such State in considering itself no 184-197 ; Scott, The Hague Peace
longer bound by such treaty accord- Gonferencea (1909), vol. i. pp. 415-
ing to the principle reftiM jjc atoTiijfciM 422; Calvo in R.I., 2nd Ser. v.
(see below, § 539) is another matter. (1903), pp. 597-623 ; Drago in R.O.,
2 Saabalnw S S19 ^'^- (1907), pp. 251-287 ; Moulin in
bee below, §319. ^ g,^ xiv. (1907), pp. 417-472;
' The Drago Doctrine originates Hershey in A.J., i. (1907), pp. 26-
from Louis M. Drago, sometime 45; Drago in A.J., i. (1907), pp.
Foreign Secretary of the Republio 692-726; Spielhagen in Z.I., iiv.
of Argentina. See Drago, Colyro (1915), pp. 509-565.
INTERVENTION 227
has not received general recognitipn, although Argen-
tina and some other South American States tried to
estabhshr this rule at the second Hague Peace Confer-
ence of 1907. But this conference adopted, on the
initiative of the United States of America, a '' Conven-
tion ^ respecting the Limitation of _the Employment of
Force for the Rejsovery of Contract Debts.' According
to Article 1 of this convention, the contracting Powers
agree not to have recourse to armed force for the re-
covery of contract debts claimed from the Government
of one country by the Government of another country
as being due to its nationals. This undertaking is,
however, not appHcable when the debtor State refuses
or neglects to reply to an offer of arbitration, or, after
accepting the offer, renders the settlement of the cmii-
fromis impossible, or, after the arbitration, fails to
submit to the award. It must be emphasised that the
stipulations of this convention concern the recovery of
all contract debts, whether or not they arise from public
loans.
§ 136. In contradistinction to intervention by right, Admisai-
there are other interventions which must be considered inte^^en-
admissible, although they violate the independence or^'T^Ji
the territorial or personal supremacy of the State con- Right,
cerned, and although such State has by no means any
legal duty to submit patiently and suffer the interven-
tion. Of such interventions in default of right there
are two kinds generally admitted and excused — ^namely,
such as are necessary in self-preservation and such as
are necessary in the interest of the balance of power,
(1) As regards interventions for the purpose of self-
preservation, it is obvious that, if any necessary viola-
tion— committed in self-defence — of the International
Personality of other States is, as shown above (§ 130),
excused, such violation must also be excused as is in-
' See Soott in A.J., ii. (1908), pp. 78-94.
228
POSITION OF THE STATES
volved in an intervention. And it matters not whether
such an intervention exercised in self-preservation is
provoked by an actual or imminent intervention on the
part of a third State, or by some other incident. ^
(2) As regards intervention in the interest of the
balance of power, it is likewise obvious that it must
be excused. An equilibrium between the members of
the Family of Nations is an indispensable ^ condition of
the very existence of International Law. If the States
could not keep one another in check, all Law of Nations
would soon disappear, as, naturally, an over-powerful
State would tend to act according to discretion instead
of according to law. Since the Westphahan Peace of
1648 the principle of the balance of power has played a
preponderant part in the history of Europe. It found
express recognition in 1713 in the Treaty of Peace of
Utrecht, it was the guiding star at the Vienna Congress
in 1815, when the map of Europe was rearranged, at
the Congress of Paris in 1856, the Conference of London
in 1867, the Congress of Berlin in 1878, and at the end of
the Balkan War in 1913. The States themselves and the
majority of writers agree upon the admissibility of inter-
vention in the interest of the balance of power. Most
of the interventions exercised in the Balkan Peninsula
must, in so far as they are not based on treaty rights, be
classified as interventions in the interest of the balance of
power. Examples of this are supphed by collective inter-
' A survey of the opinions con- Dupuis, Le Principe d'j^quilihre et
oerning the Value of the principle le Concert europien (1909), pp. 90-
of the balance of power is given by 108, and 494-513 ; and Ter Meulen,
Bulmerincq, Praxia, Theorie und Der Oedanke der IniemationaZen
Codification des Volkerrechta (1874), Organisation (1917), pp. 38-60. It is
pp. 40-30, and Hoijer, La TMorie necessary to emphasise that the
de VJiquilibre et le Droit dea Gens principle of the balance of power is
(1917), pp. 132-161 ; but Bulmerincq not a legal principle, and therefore
and Hoijer themselves reject the not one of International Law, but
principle. See also Donnadieu, Msiai one of international policy ; it is a
aur la TMorie de I' liquilihre (1900), political principle indispensable to
where the matter is exhaustively the existence of International Law
treated ; Kaeber, Die Idee dea in its present condition. See above,
ewropaischen Gleichgewichta (1907) ; § 51 n.
,.^_ INTERVENTION 229
ventions exercised by the Powers in 1886 for the purpose
of preventing the outbreak of war between Greece and
Tvirkey, in 1897 during the war between Greece and
Turkey with regard to the island of Crete, and in 1913,
towards the end of the Balkan War, for the purpose of
estabUshing an independent State of Albania.
§ 137. Many jurists maintain that intervention is interven-
hkewise admissible, or even has a basis of right, when interest ^
exercised in the interest of humanitv for the purpose of °^ ^.^'
A i _ mamty.
stoppmg rehgious persecution and endless cruelties m
time of peace and war. That the Powers have in the
past exercised intervention on these grounds, there is
no doubt. Thus Great Britain, Prance, and Russia
intervened in 1827 in the struggle between revolutionary
Greece and Turkey, because pubUc opinion was horrified
at the cruelties committed during this struggle. And
many a time interventions have taken place to stop
the persecution of Christians ^ in Turkey. But whether
there is really a rule of the Law of Nations which admits
such interventions may well be doubted. Yet, on the
other hand, it cannot be denied that pubhc opinion
and the attitude of the Powers are in favour of such
interventions, and it may perhaps be said that in time
the Law of Nations will recognise the rule that inter-
ventions in the interest of humanity are admissible,
provided they are exercised in the form of a collective
intervention of the Powers.^
§ 138. Careful analysis of the rules of the Law of interven-
Nations regarding intervention and the hitherto exeT-f°^f^
cised practice of intervention makes it apparent that^***erof
intervention is de facto a matter of policy just like war. ° °^'
' Concerning the persecution of cussed from all sides. See also
the Jews in Christian and other below, § 292 ; Bougier in R. G. ,
countries, see Wolf, Notes on the xvii. (1910), pp. 468-526 ; and Straus
Diplomatic History of the Jewish in the Proceeding! of the American
Question (1919). Society of International Law, vi.
' See Hall, §§ 91 and 95, where (1912), pp. 45-54.
the merits of the problem are dis-
230 POSITION OF THE STATES
This is the result of the combination of several factors.
Since, even in the cases in which it is based on a right,
intervention is not compulsory, but is solely in the dis-
cretion of the State concerned, it is for that reason alone
a matter of pohcy. Since, secondly, every State must
decide for itself whether vital interests of its own are
at stake and whether a case of necessity in the interest of
self-preservation has arisen, intervention is in this respect
again a matter of poMcy. Since, thirdly, the question
of the balance of power is so compHcated, and the
historical development of the States involves gradually
an alteration of the division of power between the States,
it must hkewise be left to the appreciation of every
State whether or not it considers the balance of power
endangered and, therefore, an intervention necessary.
And who can imdertake to lay down a hard and fast
rule with regard to the amount of inhumanity on the
part of a Grovernment that would justify intervention
according to the Law of Nations ?
No State will ever intervene in the affairs of another
if it has not some important interest in doing so, and it
has always been easy for such State to find or pretend
some legal justification for an intervention, be it self-
preservation, balance of power, or humanity. There is
no great danger to the welfare of the States in the fact
that intervention is de facto a matter of policy. Too
many interests are common to all the members of the
Family of Nations, and too great is the natural jealousy
between the Great Powers, for an abuse of intervention
on the part of one powerful State to pass unchallenged
by other States. Since unjustified intervention violates
the very principles of the Law of Nations, and since,
as I have stated above (§ 135), in case of a viola-
tion of these principles on the part of a State every
other State has a right to intervene, any unjustifiable
intervention by one State in the affairs of another gives
INTEKVENTION ' . 231
a right of intervention to all other States. Thus it
becomes apparent here, as elsewhere, that the Law of
Nations is intimately connected with the interests of
all the States, and that they must themselves secure
the maintenance and realisation of this law. This con-
dition of things tends naturally to hamper more the
ambitions of weaker States than those of the several
Great Powers, but it seems unalterable,
§ 139. The de facto political character of the whole The
matter of intervention becomes clearly apparent through Doctrine,
the so-called Monroe Doctrine ^ oFthe United States of
America. This doctrine, at its first appearance, was in-
directly a product of the poUcy of intervention in the
interest of legitimacy which the Holy AlHance pursued
in the beginning of the nineteenth century after the
downfall of Napoleon. The Powers of this Alhance were
inclined to extend their policy of intervention to America,
and to assist Spain in regaining her hold over the former
Spanish colonies in South America, which had declared
and maintained their independence, and which were
recognised as independent sovereign States by the
United States of America. To meet and to check the
imminent danger. President James Monroe delivered his
celebrated Message to Congress on December 2, 1823.
This Message contains two quite different, but never-
theless equally important, declarations.
' Wharton, § 57 ; Daiia's Note, No. pp. 50-60, and xvi. (1914), pp. 51-59 ;
36, toWheaton, pp. 97-112; Tucker, Hoeberlin in Z.V., vii. (1913), pp.
The Monroe Doctrine [1SS5) ; M.ooTe, 11-38; Kraus, Die Monroedoktrin
The Momroe Doctrine (1896), and (1913) ; Bartlett in the Law
Digest, vi. §§ 927-968 ; Ceaped^s, Mcogazine and Review, xjtxix. (1914),
La Doctrine de Monroe (1893); pp. 385-427; Zeballos in R.O., xxi.
M6rignhao, La Doctrine de Monroe (1914), pp. 297-339 ; Root and
A la Fin du XIX' Siicle (1896); Chandler in A.J., viii. (1914), pp.
Beaumarohais, La Doctrine de 427-442, and 515-519 ; Hull, The
Monroe (1898); Reddaway, The Momroe Doctrine (1^16) ; Proceeding!
Monroe Doctrine (1898) ; P^tin, Les of the American Society of Inter-
^tats-Unis et la Doctrine de Monroe national Law, viii. (1914), pp. 6-230 ;
(1900); Anderson in the Proceedings Armstrong in A.J.,x. (1916), pp. 77-
of the American Society of Inter- 103 ; Hart (A. B. ), The Monroe
noiionaJ j&aii), vi. (1912), pp. 72-82; Doctrine (1915), (most useful on
Lehr in R.I., 2nd Ser. xv. (1913), account of its bibliography).
232
POSITION OF THE STATES
(1) In connection with the unsettled boundary lines
in the north-west of the American continent, the Message
declared ' that the American continents, by the free
and independent condition which they have assumed
and maintained, are henceforth not to be considered
as subjects for future colonisation by any European
Power.' This declaration was never recognised by
the European Powers, and Great Britain and Russia
protested expressly against it. In fact, however, no
occupation of American territory has since then taken
place on the part of a European State.
(2) In regard to the contemplated intervention of
the Holy Alliance between Spain and the South
American States, the Message declared that the
United States had not intervened, and never would
intervene, in wars in Europe, but could not, on the
other hand, in the interest of her own peace and
happiness, allow the allied European Powers to ex-
tend their poUtdcal system to any part of America,
and try to intervene ia the independence of the South
American repubhcs.
Since the time of President Monroe, the Monroe
Doctrine has been gradually somewhat extended in so
far as the United States claims a kind of poKtical hege-
mony over all the States of the American continent.
Whenever a conflict occurs between such an American
State and a European Power, the United States is ready
to exercise intervention.^ Through the civil war her
hands were to a certain extent boimd in the sixties of
the last century, and she could not prevent the occupa-
tion of Mexico by the French army, but she intervened
in 1865. Agaia, she did not intervene in 1902 when
Great Britain, Germany, and Italy took combined action
' All the cases of interrention on discussed in the thorough work of
the part of the United States in the E>ans, Die Monroedo}ctrm(l9\3), pp.
interest of the Monroe Doctrine are 82-267.
INTERVENTION 233
against Venezuela, because she was cognisant of the fact
that this action was intended merely to make Venezuela
comply with her international duties. But she inter-
vened in 1896 in the boundary conflict between Great
Britain and Venezuela ^ when Lord Sahsbury had sent
an vUimatum to Venezuela, and she retains the Monroe
Doctrine as a matter of principle.
Not so much an extension as an extensive interpreta-
tion of the Monroe Doctrine has taken place through
the Senate adopting the following resolution on August
2, 1912 : 2 ' When any harbour or other place in the
American continents is so situated that the occupation
thereof for naval or mOitary purposes might threaten
the communications or safety of the United States, the
Government of the United States could not see, without
grave concern, the possession of such harbour or other
place by any corporation or association which had
such a relation to another Government, not American,
as to give that Government practical power of control
for naval or military purposes.'
§ 140. The importance of the Monroe Doctrine is of Merits
a pohtical, not of a legal character. Since the Law of momob
Nations is a law between all the civihsed States as equal Dootnne.
members of the Family of Nations, the States of the
American continent are subjects of the same inter-
national rights and duties as the European States.
The European States are, as far as the Law of Nations
is concerned, absolutely free to acquire territory in
America as elsewhere. And the same legal rules are
vahd concerning intervention on the part of European
* See Cleveland, The Venezuelan in Mexico, intended to sell this land
Boundary Question (1913). to a Japanese company, but before
' This resolution was passed on carrying out its intention, communi-
acoount of the so-called Magdaleiux, cated with the Department of State
Bay case. The Magdalena Bay Com- in Washington for the purpose of
pany, an American company which ascertaining whether there was any
owned a tract of land of over 400,000 objection to the intended transaction,
acres, including the Magdalena Bay See Exaus, op. cit., pp. 230-238.
234
POSITION OF THE STATES
Powers both in Amencan. ^ aSaJis and in afiairs of other
States. But it is evident that the Monroe Doctrine, as
the guiding star of the poli<y of the United States, is
of the greatest political importance. And it ought not
to be maintaiued that this poHcy is in any way incon-
sistent ^ with the Law of Nations. In the interest of the
balance of power in the world, the United States con-
siders it a necessity that European Powers should not
acquire more territory on the American continent than
they actually possess. She considers, further, her own
welfare so intimately connected with that of the other
American States, that she thiTiVa it necessary, in the
interest of self-preservation, to watch closely the rela-
tions of these States with Europe and also the rdations
between these States themselves, and, if need be, to
intervene in conflicts. Since every State must decade for
itself whether and where vital interests of its own are at
stake, and whether the balance of power is endangered to
its disadvantage, and since, as explained above (§ 138),
intervention is therefore de facto a matter of policy, there
is no legal impediment to the United States carrying out
a policy in conformity with the Monroe Doctrine. This
pohcy was a necessity in order to establish and maintain
the independence of the South American States, ^diidi,
while the Monroe Doctrine remains inforce,aFe somewhat
hampered by it. But with their growing strength it will
gradually disappear. For, whenever some of these
States become Great Powers themselves, they will no
longer submit to the political hegemony of the United
States, and the Monroe Doctrine will have played itspart.'
* Many American writers, how- graph ought to be read by erery
ever, a&sert that the Monroe Doctrine student of International I^w, main-
could be established ^~ a rule tains that the Monroe Doctzme is
of ' American' International Liw. inconsistent with Intemational Iaw.
See, for instance, Alvarez in R.G.,
XX. (1913), p. 50, and Anderson in the ' The anthor waa of opinkm Uut
Proceedingt ofthi American .iocieiff of Article 21 of the Corenant of the
International Laxn, rL (1912), p. SL Leagae of Xatijns (see below, § 167«)
* It is rery mnch to be r^retted does not make the doctrine a rale ol
that Krans, whose excellent mqpo- Intematiosal Law.
INTERCOURSE 235
VII
INTERCOURSE
Grotitis, ii. o. 2, §§ 13-17— Vattel, u. §§ 21-26— HaU, § 13— Taylor, § 160—
Hershey, No. 148— Bluntsohli, § 381 and p. 26— Hartmann, § 15—
Heffter, §§ 26 and 33— Holtzendorff in HoUzendorg, ii. pp. 60-64^-Garei8,
§ 27— Liszt, § 7— Ullmann, § 38— Bonfils, Nos. 285-289— Despagnet,
No. 183— M6rignhao, i. pp. 236-258— Pradier-Fod6r6, iv. Nos. 1899-
1904— Rivier, i. pp. 262-264^Nys, ii. pp. 263-274— Calvo, iii. §§ 1303-
1305— Fiore, i. No. 370— Martens, i. § 79.
§ 141. Many adherents of the doctrine of funda- inter-
mental rights include therein also a right of intercouise ^k^^-
for every State with aU others. This right of intercourse position
., . ., r -i- ^ • . , (A Inter-
is said to comprise a nght of diplomatic, commercial, national
postal, telegraphic intercourse, of intercourse by rail- auty?"
way, a right for foreigners to travel and reside on the
territory of every State, and the like. But if the real
facts of international life are taken into consideration,
it becomes at once apparent that such a fundamental
right of intercourse does not exist. All the conse-
quences which are said to foUow from the right of
intercourse are not at all consequences of a right,
but nothing else than consequences of the fact thab
intercourse between the States is a condition without
which a Law of Nations would not and could not exist.
The civilised States make a community of States because
they are knit together through their common interests,
and the manifold intercourse which serves these inte-
rests. Through intercourse with one another, and with
the growth of their common interests, the Law of
Nations has grown up among the civilised States.
Where there is no intercourse, there cannot be a com-
munity and a law for such community. A State cannot
be a member of the Family of Nations and an Inter-
national Person, if it has no intercourse whatever with
236
POSITION OF THE STATES
at least one or more other States. Varied intercovirse
with other States is a necessity for every civilised State,
The mere fact that a State is a member of the Family
of Nations shows that it has various intercourse with
other States, for otherwise it would never have become
a member of that family. Intercourse is therefore one
of the characteristics of the position of the States
within the Family of Nations, and it may be main-
tained that intercourse is a presupposition of the In-
ternational Personahty of every State. But no special
right or rights of intercourse between the States exist
according to the Law of Nations. It is because such
special rights of intercourse do not exist that the States
conclude special treaties regarding matters of post,
telegraphs, telephones, railways, and commerce. On
the other hand, most States keep up protective duties
to exclude or hamper foreign trade in the interest of
their home commerce, industry, and agriculture. And
although as a rule they allow -^ ahens to travel and to
reside on their territory, they can expel every foreign
subject according to discretion.
Conse- § 142. Intercourse being a presupposition of Inter-
inter-^^° national Personahty, the Law of Nations favours inter-
rpresu"^- '^o^rs^ ^ every way. The whole institution of legation
position serves the interest of intercourse between the States,
national as docs the consular institution. The right of legation,^
fiity?" which every full sovereign State undoubtedly holds, is
held in the interest of intercourse, as is certainly the
right of protection over citizens abroad^ which every
State possesses. The freedom of the open sea,* which
has been universally recognised since the end of the
first quarter of the nineteenth century, the right of
^ That an alien has no right to ' See below, § 319. The right of
demand to be admitted to British protection over citizens abroad is
territory was decided in the case of frequently said to be a special right
Mu$grove v. Chun Teeong Toy, [1891] of self-preservation, but it is really a
A. C. 272. right in the interest of intercourse.
» See below, § 360. « See below, § 259.
JURISDICTION 237
every State to the passage of its merchantmen through
the maritime belt^ of all other States, and, further,
freedom of navigation for the merchantmen of all nations
on so-called international rivers,^ are further examples
of provisions of the Law of Nations in the interest of
international intercourse.
The question whether a State has the right to require
such States as are outside the Family of Nations to
open their ports and allow commercial intercourse
is frequently discussed and answered in the affirmative. ^
Since the Law of Nations is a law between those States
only which are members of the Family of Nations, it
has certainly nothing to do with this question, which
is therefore one of mere commercial pohcy and of
morality.
VIII
JURISDICTION
Hall, §§ 62, 75-80 — Westlake, i. pp. 246-281 — Lawrence, §§ 93-109—
Phillimore, i. §§ 317-355— Twiaa, i. §§ 157-171— Halleok, i. pp. 198-270
—Taylor, §§ 169-171— Wheaton, §§ 77-151— Moore, ii. §§ 175-249—
Hershey, No. 149— Bluntsohli, §§ 388-393— Heflfter, §§ 34-39— Bonfila,
Nos. 263-266— Rivier, i. § 28— Nya, li. pp. 304-310— Fiore, i. Nob. 475-
558— Praag, Nos. 25-48.
§ 143, Jurisdiction is for several reasons a matter jurisdio-
of importance as regards the position of the States *'°^'J ™"
within the Family of Nations. States possessing inde- for the
pendence and territorial as well as personal supremacy oUhe°"
can naturally extend or restrict their iurisdiction as far ^*!^^^ ,^
■I Ti XT 1 p 1 T-, withinthe
as they like. However, as members of the Family of Family of
Nations and International Persons, the States must '^*'°"^'
exercise self-restraint in the interest of one another
in using this natural power. Since intercourse of all
kinds takes place between the States and their subjects,
» See below, § 188. « See below, § 178.
/
238 POSITION OF THE STATES
the matter ought- to be thoroughly regulated by the
Law of Nations. But such regulation has as yet only
partially grown up. The consequence of both the
I regulation and non-regulation of jurisdiction is that
conciirrent jurisdiction of several States can often at
! the same time be exercised over the same persons and
' matters. And it can also happen that matters faU
under no jurisdiction because the several States which
could extend their jurisdiction over these matters refuse
to do so, each leaving them to the other's jurisdiction.
Restric- § 144. As all pcrsons and things withia the territory
Te^^'^'^of a State fall under its territorial supremacy, every
*«"*' . State has jurisdiction over them. The Law of Nations,
tion- however, gives a right to every State to claim so-called
exterritoriaUty, and therefore exemption from local
jurisdiction, chiefly for its head,^ its diplomatic envoys,^
its men-of-war,^ and its armed forces * abroad. And
partly by custom and partly by treaty obligations.
Eastern non-Christian States, Japan now excepted, are
restricted ^ in their territorial jurisdiction with regard
to foreign resident subjects of Christian Powers.
Jnriadie- § 145. The Law of Nations does not prevent a State
Citizena'^ from cxercising jurisdiction over its subjects traveUing
abroad, qt residing abroad, siace they remaiu under its per-
sonal supremacy. As every State can also exercise
jurisdiction over aliens ^ within its boundaries, such
ahens are often under two concurrent jurisdictions.
And, since a State is not obhged to exercise jurisdiction
for all matters over ahens on its territory, and since
the home State is not obhged to exercise jurisdiction
* Details below, §§ 348-353, and regards the very limited exterri-
356. The exemption o£ a State itself tonality of merchantmen which are
from the jurisdiction of another is not by distress compelled to enter a
based upon a claim toexteiritoriality , foreign port, see below, § 189.
but upon the claim to equality ; see 4 Petails below § 445
above, § 115. b -r^ ., , '
» DetaiU below, §§ 385-405. Details below, §§ 318 and 440.
« Details below, §§ 450-461. As • See below, § 317.
JUEISDICTION 239
over its subjects abroad, it may and does happen that
aliens are actually for some matters under no State's
jurisdiction.
§ 146. As the open sea is not under the sway of Jurisdio-
any State, no State can exercise its jurisdiction there, open^ea^
But it is a rule of the Law of Nations that vessels,
and the things and persons thereon, remain during the
time they are on the open sea under the jurisdiction
of the State under whose flag they sail.^ It is another
rule of the Law of Nations that piracy ^ on the open
sea can be punished by any State, whether or not the
pirate sails under the flag of a State. Fuither,^ a
general practice seems to admit the claim of every
maritime State to exercise jurisdiction over cases of
collision at sea, whether the vessels concerned are or
are not sailing under its flag. Again, in the interest
of the safety of the open sea, every State has the right
to order its men-of-w^r to ask any suspicious merchant-
man they meet on the open sea to show the flag, to
arrest foreign merchantmen saiUng under its flag with-
out an authorisation for its use, and to pursue into the
open sea, and to arrest there, such foreign merchantmen
as have conamitted a violation of its law whilst in its
ports or maritime belt.* Lastly, in time of war belli-
gerent States have the right to order their men-of-war
to visit, search, and eventually capture on the open
sea aU neutral vessels for carrying contraband, breach
of blockade, or unneutral services to the enemy.
§ 147. Many States claim jurisdiction and threaten Criminal
punishment for certain acts committed by a foreigner yonder
in foreign countries.^ States which claim jurisdiction ^°™'6"-
of this kind threaten punishment for certain acts either Foreign
against the State itself, such as high treason, forging ^****^-
" See below, § 260. " See Hall, § 62 ; Westlake, i. pp.
' See below, §278. 261-263; Lawrence, § 104; Taylor,
' See below, § 265. § 191 ; Moore, ii. §§ 200 and 201 :
« See below, § 266. Phjllimore, i. § 334.
240 POSITION OF THE STATES
bank-notes, and the like, or against its citizens, such as
murder or arson, Ubel and slander, and the like. These
States cannot, of course, exercise this jurisdiction as
long as the foreigner concerned remains outside their
territory. But if, after the conunittal of such act, he
enters their territory and comes thereby under their
territorial supremacy, they have an opportunity of
inflicting pimishment. The question is, therefore,
whether States have a right to jurisdiction over acts of
foreigners committed in foreign countries, and whether
the home State of such an alien has a duty to acquiesce
in the latter's punishment in case he comes into the
power of these States. The question, which is con-
troversial, ought to be answered in the negative.^ For
at the time such criminal acts are committed the per-
petrators are neither under the territorial nor under the
personal supremacy of the States concerned. And a
State can only require respect for its laws from such
ahens as are permanently or transiently within its
territory. No right for a State to extend its jurisdic-
tion over acts of foreigners committed in foreign countries
can be said to have grown up according to the Law of
Nations, and the right of protection over citizens abroad
held by every State would justify it in an intervention
iu case one of its citizens abroad should be required to
stand his trial before the courts of another State for
criminal acts which he did not commit during the time
he was under the territorial supremacy of such State.^
' But Continental publicists adopted the f ollcwing (Article 8) : —
answer the question in the affirma- ' Every State has a right to pmiisli
tive. See Mortitz, Internationale acts conunitted by foreigners outside
RechUhilfe in Strafeachen (1888), p. its territory and violating its penal
82, and Fraag, No. 43. laws when those acts contain an
' The Institute of International attack upon its social existenoe, or
Law has studied the question at endanger its security, and when they
several meetings, and in 1883, at its are not provided against by the
meeting at Munich (see Annuaire, Criminal Law of the territory where
vii. p. 156), among a body of fifteen they take place.' Bnt it must be
articles concerning the conflict of the emphasised that this resolution has
Criminal Laws of different States, value de legeferenda only.
1 1
JUEISDICTION
241
In the only case ^ which is reported — namely, in the case
of Cutting — an intervention took place according to this
view. In 1886 one A. K. Cutting, a subject of the
United States, was arrested in Mexico for an alleged
libel against one Emigdio Medina, a subject of Mexico,
which was published in the newspaper of El Paso in
Texas. Mexico maintained that she had a right to
punish Cutting, because according to her Criminal Law
ofiences committed by foreigners abroad against Mexican
subjects are punishable in Mexico. The United States,
however, intervened,^ and demanded Cutting's release.
Mexico refused to comply with this demand, but never-
theless Cutting was finally released, as the plaintiff with-
drew his action for hbel. Since Mexico hkewise refused
to comply with the demand of the United States to alter
her Criminal Law for the purpose of avoiding ia the
future a similar incident, diplomatic practice has not
at aU settled the subject.
* The case of Girilo Pouble — see
Moore, ii. § 200, pp. 227-228— con-
cerning which the United States at
first was inclined to intervene,
proved to be a case of a crime
committed within Spanish jurisdic-
tion. The case of John Anderson —
see Moore, i. § 174, pp. 932-933— is
likewise not relevant, as he claimed
to be a British subject.
* See Westlake, i. p. 252 ; Taylor,
§ 192 ; Calvo, vi. §§ 171-173 ; Moore,
ii. § 201 ; and Report on Extra-
territorial Grime and the Cutting Cote
(1887) ; Rolin and Gamboa in R.I.,
XX. (1888), pp. 559-577, and xxii.
(1890), pp. 234-250. The case is
fully discussed and the American
claim is disputed by Mendelssohn
Bartholdy, Das rdumliche Herr-
schaJlagSiet des Strafgesetzes (1908),
pp. 135-143.
VOL. I.
CHAPTER III
RESPONSIBILITY OF STATES
I
ON STATE RESPONSIBILITY IN GENERAL
Grotius, ii. o. 17, § 20, and o. 21, § 2— Pufendorf, viii. o. 6, § 12— Vattel, ii.
§§ 63-78— Hall, § 65— Halleok, i. pp. 471-476— Wharton, i. § 21—
1 Moore, vi. §§ 979-1039 — Wlieaton, § 32 — Hershey, Nos. 160-157—
Bluntsohli, § 380a— Heffter, §§ 101-104— Holtzendorff in Holtzendorff, ii.
pp. 70-74— Liszt, § 24— UUmann, § 39— Bonfils, Nos. 324-332— Des-
pagnet, No. 466— Piedeli&vre, i. pp. 317-322— Pradier-Fod^^, i. Nos.
196-210— Rivier, ii. pp. 40-44— Calvo, iii. §§ 1261-1298— Piore, i. Nos.
659-679, and Code, Nos. 596-615— Martens, i. § 118— Qunet, Offemet
et Actet hoitiles commis pair des Pwrticuliera contre un £tai Stranger
(1887)— Triepel, Volkerrecht und Landesrecht (1899), pp. 324-381—
Anzilotti, Teoria generaU della Besponsabilita dello Stato nd Diritto
intemazionale (1902) — Wiese, Le Droit international a^ppliqui aux
Gwrrei civiles (1898), pp. 43-65 — Bougier, Les Guerrea civilet et le
Droit des Gens (1903), pp. 448-474— Baty, International Law (1908),
pp. 91-242 — Borohard, §§ 73-130— Costa, El Extranjero en la Guerra
civil (1913) — Marinoni, La BesponadbUitA degli Stati per gli Atti dei loro
Bappresentanti {1914:)— Sohoen, Dievolkerrechtliche jffa/tung der Staaten
aus unerlavbten Handlungen (1917) — Anzilotti in B.G., jdii. (1906), pp.
5-29, and 285-309— Foster in A.J., i. (1907), pp. 4-10— Bar in B.L, 2nd
Ser. i. (1899), pp. 464-481— Arias in A.J., vii. (1913), pp. 724-765—
Goebel in A.J., viii. (1914), pp. 802-852— Peaslee in A.J., x. (1916),
pp. 328-336 — Harriman in the Proceedings of the American Society of
International Law, ix. (1916), pp. 69-77.
Nature § 148. It is often maintained that a State, as a sove-
Responsi- Tcign person, can have no legal responsibility whatever.
biiity. fjjjjg jg Qjjiy correct with reference to certain acts of a
State towards its subjects. Since a State can abolish
parts of its Municipal Law and can make new Municipal
Law, it can always avoid legal, although not moral,
242
OK STATE RESPONSIBILITY IN GENERAL 243
responsibility by a change of Municipal Law. Different
from this internal autocracy is the external responsi-
bility of a State to fulfil its international legal duties.
Responsibility for such duties is, as will be remembered/
a quahty of every State as an International Person,
without which the Family of Nations could not peace-
ably exist. Although there is at present no Inter-
national Court of Justice which could summon a State
and estabUsh its responsibihty for neglect of its inter-
national duties, State responsibility concerning inter-
national duties is nevertheless a legal responsibility.
For a State cannot abohsh or create new International
Law in the same way that it can abolish or create new
Municipal Law. A State, therefore, cannot renounce
its international duties unilaterally ^ at discretion, but
is and remains legally bound by them. And although
there is not and never will be a central authority above
the several States to enforce the fulfilment of these
duties, there is the legalised self-help of the several
States against one another. For every neglect of an
international legal duty constitutes an international
dehnquency,^ and the violated State can through re-
prisals or even war compel the dehnquent State to
comply with its international duties. It is only theorists
who deny the possibihty of a legal responsibility of
States ; the practice of the States themselves recognises
it distinctly, although there may in a special case be
controversy as to whether a responsibihty is to be borne.
And State responsibihty is now in a general way recog-
nised for the time of war by Article 3 of the Hague Con-
vention of 1907, concerning the Laws and Customs of
War on Land, which stipulates : ' A belhgerent party
' See above, § 113. liberate itself from the engagements
' See Annex to Protocol I. of the of a treaty, or modify the stipnla-
Conferenoe of London, 1871, where tions thereof, unless with the consent
the Signatory Powers proclaim that of the contracting Powers by means
' it is an essential principle of the of an amicable arrangement,'
Law of Nations that no Power can ' See below, § 151.
244
RESPONSIBILITY OF STATES
which, violates the provisions of the said Regulations
shall, if the case demands, be hable to pay compensa-
tion. It shall be responsible for all acts committed by
persons forming part of its armed forces.'
Original § 149. Now if wc examine the various international
Vicarious dutics out of which responsibiUty of a State may
Re^sp^onsi- ™®' ^® ^^^ *^^* ^* ^^ nccessary to distinguish two
biiity. different kinds of State responsibihty. They may
be named ' original ' in contradistinction to ' vicarious '
responsibiUty. I name as ' original ' the responsibihty
borne by a State for its own — ^that is, for its Govern-
ment's actions, and such actions of the lower agents
or private individuals as are performed at the Govern-
ment's command or with its authorisatioi^ But States
have to bear another responsibihty besmes that just
mentioned. For States are, according td the Law of
Nations, in a sense responsible for certain acts other
than their own — -namely, certain unauthorised injurious
acts of their agents, of their subjects, and even of such
ahens as are for the time hving within their territory.
This responsibility of States for acts other than their
own I name '' vicarious ' responsibility. Since the
Law of Nations is a law between States only, and since
States are the sole exclusive subjects of International
Law, individuals are mere objects ^ of International Law,
and the latter is unable to confer directly rights and
duties upon individuals. And for this reason the Law
of Nations must make every State in a sense responsible
for certain internationally injurious acts committed by
its officials, subjects, and such ahens as are temporarily
resident on its territory.^
' See below, § 290. appreciate this distinction is pre-
* The distinction between original judicial to the results of his re-
and vicarious responsibility was first searchesoonoerningthe responsibility
made, in 1905, in the first edition of of States. This distinction is ap-
this treatise, and ought therefore to proved of by Borchard, § 74, but
have been discussed by Anzilotti in rejected by Schoen, op. cit, pp.
his able article in B.O., xiii. (1906), 40-42, who defends Anzilotti.
p. 292. The fact that he does not
INTERNATIONAL DELINQUENCIES 245
§ 150. It is, however, obvious that original and Esaentiai
vicarious State responsibility are essentially different, betwetn"^
Whereas the one is responsibihty of a State for a neglect ^^^*"*'
of its own duty, the other is not. A neglect of inter- vioarioua
national legal duties by a State constitutes an inter- biuty°°^'"
national dehnquency. The responsibihty which a State
bears for such a dehnquency isL especially grave, and
requires, apart from other special consequences, a
formal expiatory act, such as an apology at least, by
the deHnquent State to repair the wrong done. On
the other hand, the vicarious responsibihty which a
State bears requires chiefly compulsion to make those
ofiicials or other individuals who have committed inter-
nationally injurious acts repair as far as possible the
wrong done, and punishment, if necessary, of the wrong-
doers. In case a State comphes with these require-
mei^ts, no blame falls upon it on account of such in-
jurious acts. But of course, in case a State refuses to
comply with these requirements, it commits thereby
an international dehnquency, and its hitherto vicarious
responsibihty turns ipso f ado into original responsibihty.
II
STATE RESPONSIBILITY FOR INTERNATIONAL
DELINQUENCIES
See the literature quoted above at the oommenoement of § 148, and especially
Borohard, § 82, and Sohoen, op. cit., pp. 21-63.
§ 151. International dehnquency is every injury to Conoep-
another State committed by the head and the Govern- i^ter°^
ment of a State through violation of an international national
legal duty. Equivalent to acts of the head and Govern- queneies.
ment are acts of officials or other individuals com-
manded or authorised by the head or Government.
246 EESPONSIBILITY OP STATES
An international delinquency is not a crime, because
the delinquent State, as a sovereign, cannot ^ be pun-
ished in the same way as a delinquent individual,
although compulsion may be exercised to procure a
reparation of the wrong done.
International delinquencies in the technical sense of
the term must not be confounded either Asdth so-called
' Crimes against the Law of Nations,' or with so-called
' International Crimes.' ' Crimes against the Law of
Nations,' in the wording of many Crircanal Codes of
the several States, are such acts of individuals against
foreign States as are rendered criminal by these codes.
Of these acts, the gravest are those for which the State
on whose territory they are committed bears a vicarious
responsibihty according to the Law of Nations. ' Inter-
national Crimes,' on the other hand, refer to crimes hke
piracy on the high seas or slave trade, which either every
State can pimish on seizure of the criminals, of whatever
nationahty they may be, or which every State has by
the Law of Nations a duty to prevent.
An. international delinquency must, further, not be
confounded with discourteous and unfriendly acts.
Although such acts may be met by retorsion, they are
not illegal and therefore not dehnquent acts.
Subjects § 152. An international delinquency may be com-
nitionai fitted by every member of the Family of Nations, be
DeUn- g^ci^ member a full sovereign, half sovereign, or part
sovereign State. Yet half and part sovereign States
can commit international dehnquencies in so far only
as they have a footing within the Family of Nations,
and therefore international duties of their own. And
even then the circumstances of each case decide whether
the dehnquent has to account for its neglect of an inter-
* For this reason the Hague Coiu't vol. ii. § 403a — refused to pronounce
of Arbitration by its award in the a fine of one frauo against Italy, as
case of The Carthage — see below, demanded by France.
quenoies.
INTERNATIONAL DELINQUENCIES 247
national duty directly to the wronged State, or whether
it is the full sovereign State (suzerain, federal,^ or pro-
tectorate-exercising State), to which the dehnquent
State is attached, that must bear a vicarious responsi-
bility for the delinquency. On the other hand, such
States as are without any footing whatever within
the Family of Nations, as, for example, the member-
States of the American Federal States, because all
their possible international relations are absorbed by
the respective Federal States, cannot commit an inter-
national dehnquency. Thus an injurious act against
France committed by the Government of the State of
California in the United States of America, would not
be an international dehnquency in the technical sense
of the term, but merely an internationally injurious act
for which the United States of America must bear a
vicarious responsibihty. An instance of this is to be
found in the conflict ^ which arose in 1906 between
Japan and the United States of America, on account
of the segregation of Japanese children by the Board
of Education of San Francisco, and the demand of
Japan that this measure should be withdrawn. The
Government of the United States at once took the side
of Japan, and endeavoured to induce California to
comply with the Japanese demands.
§ 153. Since States are juristic persons, the question state
arises, — Whose internationally injurious acts are to be 2uetl
considered State acts and therefore international deMn- commit
quencies ? It is obvious that acts of this land are, national
first, all such acts as are performed by the heads of qugn"ieg
States or by the members of a Government acting in
' See Donot, jDe la Reiponsahilitd Borohard, § 82; Sohoen, op. cit.,
de I'iltat fid&ral d, Baiaon dea Actei pp. 100-107.
des jStats particvliers (1912), where a
number of important eases are dis- * See Hyde in The Green Bag,
oussed. See also Gammansin ^./., xix. (1907), pp. 38-49 ; Root in .4.,/.,
viii. (1914), pp. 73-80; Cohen in i. (1907), pp. 273-286; Barth61emy
Z.V., Tiii. (1914), pp. 134-153; in iJ.C, xiv. (1907), pp. 636-685.
248
RESPONSIBILITY OP STATES
that capacity, so that their acts appear as State acts.
Acts of such kind are, secondly, all acts of ofl&cials or
other individuals which are either commanded or
authorised by Governments. On the other hand, \m-
authorised acts of corporations, such as mimicipaUties,
or of officials, such as magistrates or even ambassadors,
or of private individuals, never constitute an iuter-
national dehnquency. And, further, all acts committed
by heads of States and members of a Government outside
their official capacity, simply as individuals who act for
themselves and not for the State, are not international
delinquencies.! The States concerned must certaioly
bear a vicarious responsibility for all such acts, but for
that very reason these acts do not comprise inter-
national delinquencies.
§ 154. An act of a State injurious to another State is
nevertheless not an international dehnquency if com-
mitted neither wilfuUy and mahciously nor with culp-
MaUoe or able negHgence.^ Therefore, an act of a State committed
by right, or prompted by self-preservation in necessary
self-defence, does not constitute an international delin-
quency, however injurious it may actually be to an-
other State.^ And the same is vahd in regard to acts of
officials or other individuals committed by command or
with the authorisation of a Government.
§ 155. International dehnquencies may be com-
mitted against so many different objects that it is im-
No Inter-
national
Delin-
quency
without
Culpable
\ ', Negli'
genoe,
1 See below, §§ 158-159.
' Sohoen, op. cit., p. 62, defends
the opinion that in certain cases a
State can be made responsible
although there is no culpable negli-
gence on its part. He is compelled
to adopt this opinion because — follow-
ing Anzilotti — he rejects the funda-
mental distinction between original
and vicarious responsibility, and
considers a State originally, and
not only vicariously, responsible for
all internationally injurious acts of
its officials.
' Although violations of another
State prompted by self-preservation
in necessary self-defence are not
international delinquencies because
there is no mens rea, they neverthe-
less— see above, § 129 — remain viola-
tions. They can therefore be re-
pulsed, and indemnities may be de-
manded for damage done. But
Schoen (op. cit., pp. 115-118) denies
this.
INTEENATIONAIi DELINQUENCIES 249
possible to enumerate them. It suffices to give some Objects
^ * of Inter-
striking examples. Thus a State may be injured — in national
DeUn-
quencies.
regard to its independence through an unjustified inter- ^®^"'
vention ; ia regard to its territorial supremacy through
a violation of its frontier ; in regard to its dignity
through disrespectful_treatnient of its head or its diplo-/
matic envoys ; in regard to its personal supremacy
through forcible naturaMsation of its citizens abroad ;
in regard to its treaty rights through an act violating a
treaty ; in regard to its right of protection over citizens
abroad through any act that violates the person, the
honour, or the property ^ of one of its citizens abroad.
A State may also suffer various injuries in time of war
by illegitimate acts of warfare, or by a violation of
neutrality on the part of a neutral State in favour of
the other belligerent. And a neutral may in time of
war be injured in various ways through a beUigerent
violating neutrality by acts of warfare within the
neutral State's territory, (for instance, through a belU-
gerent man-of-war attacking an enemy vessel in a
neutral port or in neutral territorial waters) ; or through
a belligerent violatiug neutrahty by acts of warfare
committed on the open sea against neutral vessels.
§ 156. The nature of the Law of Nations as a law Legal Con-
between, not above, sovereign States excludes the o^iifter-^
possibihty of punishing a State for an international 5**^°°^!
delinquency and of considering the latter in the Ught quenoies.
of a crime, though it may be thought to be an atrocious
crime, if morally considered. The only legal conse-
quences of an international dehnquency that are possible
under existing circumstances are such as create repara-
tion of the moral and material wrong done.^ The merits
' That a State which does not pay there is no doubt. On the so-oaUed
its publiodebts due to foreigners, and Drago Doctrine, and the Hague Con-
refuses, on the demand of the home vention concerning the Employment
State of the foreigners concerned, to of Force for the Recovery of Contract
make satisfactory arrangements, com- Debts, see above, § 135 (6).
mits an international delinquency '^ See Schoen, op. ciJ., pp. 122-143.
250 EESPONSIBILITY OP STATES
and the conditions of the special cases are, however, so
different, that it is impossible for the Law of Nations to
prescribe once for all what legal consequences an inter-
national dehnquency should have. The only rule which
is unanimously recognised by theory and practice is that
out of an international dehnquency arises a right for
the wronged State to request from the delinquent State
the performance of such expiatory acts as are necessary
for a reparation of the wrong done. "What kind of acts
these are depends upon the special case and the discre-
tion of the wronged State. It is obvious that there
must be a pecrmiary reparation for a material damage.
Thus, according to Article 3 of the Hague Convention
of 1907, concerning the Laws and Customs of War on
Land, a belligerent party which violates these laws shall,
if the case demands, be Hable to make compensation.
But at least a formal apology on the part of the dehn-
quent will in every case be necessary. This apology may
have to take the form of some ceremonial act, such as
a salute to the flag or to the coat of arms of the
wronged State, the despatch of a special embassy bearing
apologies, and the hke. A great difference would natur-
ally be made between acts of reparation for international
dehnquencies dehberately and mahciously committed,
and for such as arise merely from culpable neghgence.
When the dehnquent State refuses reparation for the
wrong done, the wronged State can exercise such means
as are necessary to enforce an adequate reparation.
In case of international dehnquencies conmiitted in
time of peace, such means are reprisals ^ (including
embargo and pacific blockade) and war, as the case may
require. On the other hand, in case of international
dehnquencies committed in time of war through ille-
gitimate acts of warfare on the part of a beUigerent,
such means are reprisals and the taking of hostages.^
» See below, vol. ii. § 34. ' See below, vol. ii. §§ 248 and 259.
ACTS OP STATE ORGANS 251
III
STATE RESPONSIBILITY FOR ACTS OF STATE ORGANS
See the literature quoted above at the coraraencement of § 148, and especially
Moore, vi. §§ 998-1018, Borohard, §§ 75-81, and 127-130, Sohoen, op. cit.,
pp. 80-122, and Marinoni, La Beaponsabilitd, degli Stati per gli Atti
dei loro Bappresentanti (1914).
§ 157. States must bear vicarious responsibility for Kesponsi-
all internationally injurious acts of their organs. As, ^'Jj*Jg
however, these organs are of different kinds and of with
different position, the actual responsibility of a State con-
fer acts of its organs varies with the agents concerned. °^'^^^-
It is therefore necessary to distinguish between inter-
nationally injurious acts of heads of States, members of
a Government, diplomatic envoys, parliaments, judicial
functionaries, administrative officials, and military and
naval forces.
§ 158. Such internationally injurious acts as are com- inter-
mitted by heads of States in the exercise of their official i^^^^^^
functions are not our concern here, because they con- Acts of
stitute international delinquencies, which have beenstttea."
discussed above (§§ 151-156). But a monarch can, just
as any other individual, in his private life commit many
internationally injurious acts; and the question is,
whether and in what degree a State must bear respon-
sibihty for such acts of its head. The position of a
head of a State, who is, within and without his State,
neither under the jurisdiction of a court of justice nor
under any kind of disciphnary control, makes it a neces-
sity for the Law of Nations to impose a certain vicarious
responsibihty upon States for internationally injurious
acts committed by their heads in private life. Thus,
for instance, when a monarch during his stay abroad
commits an act injurious to the property of a foreign
252
RESPONSiBiLrry op states
subject and refuses adequate reparation, his State may
be requested to pay damages on his behalf.
Inter- § 159. As regards internationally injurious acts of
Injurious'^ members of a Grovernment, a distinction must be made
MembCTB between such acts as are committed by the offenders in
of Govern- their oflScial capacity, and other acts. Acts of the first
kind constitute international delinquencies, as stated
above (§ 153). But members of a Government can in
their private life perform as many internationally in-
jurious acts as private individuals, and we must ascer-
tain therefore what kind of responsibility their State
must bear for such acts. Now, as members of a Govern-
ment have not the exceptional position of heads of
States, and are, therefore, under the jurisdiction of the
ordinary courts of justice, there is no reason why their
State should bear for internationally injurious acts
committed by them in their private life a vicarious
responsibihty different from that which it has to bear
for acts of private persons.
Inter- § 160. The position of diplomatic envoys who, as
^j^u^o^'^ representatives of their home State, enjoy the privi-
Aets^of igges of exterritoriaUty, gives, on the one hand, a very
matio great importance to internationally injurious acts com-
mitted by them on the territory of the receiving State,
and, on the other hand, excludes the jurisdiction of
the receiving State over such acts. The Law of Nations
therefore makes the home State in a sense responsible
for all acts of an envoy injurious to the State or its
subjects in whose territory he resides. But it depends
upon the merits of the special case what measures
beyond simple recall must be taken to satisfy the
wronged State. Thus, for instance, a crime committed
by the envoy on the territory of the receiving State
must be punished by his home State, and according to
special circumstances and conditions the home State
may be obhged to disown an act of its envoy, to apolo-
Euvoys.
ACTS OP STATE ORGANS 253
gise or express its regret for his behaviour, or to pay
damages. It must, however, be remembered that such
injurious acts as an envoy performs at the command
or with the authorisation of his home State, constitute
international dehnquencies for which the home State
bears original responsibihty, and for which the envoy
cannot personally be blamed.
§ 161. As regards internationally injurious attitudes inter-
of parKaments, it must be kept in mind that, most ^j^iJ^^u/
important as may be the part parhaments play in the ^*p*"y^^
political life of a nation, they do not belong to thements.
agents which represent the States in their international
relations with other States. Therefore, however in-
jurious to a foreign State an attitude of a parHament
may be, it can never constitute an international dehn-
quency. That, on the other hand, all States must bear
vicarious responsibihty for such attitudes of their par-
haments, there can be no doubt. But, although the
position of a Government is difiB.cult in such cases,
especially in States that have a representative Govern-
ment, this does not concern the wronged State, which
has a right to demand satisfaction and reparation for
the wrong done.^
§ 162. Internationally injurious acts conunitted by inter-
judicial functionaries in their private hfe are in no way ^j^^oui'^
difEerent from such acts committed by other individuals, f "1? ?^
Ti 1 p • ■ • 1 ■ • Judicial
But these functionaries may m their ofl&cial capacity Funotion-
commit such acts, and the question is how far the *"^^'
vicarious responsibihty of a State for acts of its judicial
functionaries can reasonably be extended in face of the
fact that in modern civihsed States these functionaries
are almost entirely independent of their Government.^
Undoubtedly, in case of such denial ^ or undue delay of
* See details in Borohard, § 75. abundant and instructive material on
this question.
" Wharton, ii. § 230, oompriaes ' See Borchard, §§ 127-130.
254
RESPONSIBILITY OF STATES
justice by the courts as is internationally injurious, a
State must find means to exercise compulsion against
such comrts. And the same is vahd with regard to an
obvious and mahcious act of misapphcation of the law
by the courts which is injurious to another State. But
if a court observes its own proper forms of justice and
nevertheless makes a materially imjust order or pro-
nounces a materially unjust judgment, matters become
so complicated that there is hardly a peaceable way in
which the injured State can successfully obtain repara-
tion for the wrong done, unless the other party consents
to bring the case before a Court of Arbitration.
An illustrative case is that of The Costa Rica Packet,^
which happened in 1891. Carpenter, the master of
this Australian whaUng-ship, was, by order of a court
of justice, arrested on November 2, 1891, in the port
of Ternate, in the Dutch East Indies, for having com-
mitted three years previously a theft on the sea within
Dutch territorial waters. He was, however, released
on November 28, because the court found that the
alleged crime was not committed within Dutch terri-
torial waters, but on the high seas. Great Britain
demanded damages for the arrest of the master of
the Costa Rica Packet, but HoUand maintained that,
since the judicial authorities concerned had ordered
the arrest of Carpenter in strict conformity with the
Dutch laws, the British claim was unjustified.. After
some correspondence, extending over several years,
Great Britain and HoUand agreed, in 1895, upon having
the conflict settled by arbitration and upon appointing
the late Professor de Martens of St. Petersburg as
arbitrator. The award, given in 1897, was in favour
of Great Britain, and Holland was condemned to pay
• See Bles in R.I., xxviii. (1896), i. § 148. See also UUmann, De la
pp. 452-468 ; Regelsperger in B.O., SetponsaiilM de I'Blat en Maliire
iv. (1897), pp. 735-745; Valery in ivdiciaire {\%U) ; Borohard, § 81,
B.G., V. (1898), pp. 57-66; Moore,
ACTS OF STATE ORGANS 255
damages to the master, the proprietors, and the crew
of the Costa Rica Packet.^
§ 163. Internationally injurious acts committed in inter-
the exercise of their official functions by administrative "nju'rious^
officials and miUtary and naval forces of a State with- ^°}^p{
,1 i' 1 • • Adminis-
out that btate 3 command or authorisation, are not trative
international delinquencies, because they are not State and°Miii-
acts. But a State bears a wide, unlimited, and unxe- *?''? *°'^
. . Naval
stricted ^ vicarious responsibiUty for such acts because Forces.
its administrative officials and military and naval forces
are under its disciphnary control, and because all acts
of such officials and forces in the exercise of their official
functions are prima fade acts of the State.^ There-
fore, a State has, first of all, to disown and dis-
approve of such acts by expressing its regret or even
apologising to the Government of the injured State ;
secondly, damages must be paid * whelre required ; and,
lastly, the offenders must be punished according to the
merits of the special case.
As regards the question what kind of acts of
administrative officials and iniHtary and naval forces
are of an internationally injurious character, the
rule may safely be laid down that such acts are
internationally injurious as would constitute inter-
national delinquencies when committed by the State
itself, or with its authorisation. Four very instructive
cases may be quoted as illustrative examples :
(1) On September 26, 1887, a German soldier on
sentry duty at the frontier near Vexaincourt shot from
the German side and killed an individual who was on
^ The whole correspondence on the and Customs of War on Land, which
subject and the award are printed in stipulates that a State is responsible
Martens, N'.R.O., 2nd Ser. xxiii. for all acts committed by its armed
(1898), pp. 48, 715, and 808. forces.
" Borohard (§ 77) objects to this * Grotius, ii. o. 17, § 20, denies
statement. this : ' Neque vero si quid miKtes,
' It is of importance to quote again aut terrestres, aut nautici, contra
here Article 3 of the Hague Conven- imperium amiois noouissent, reges
tion of 1907, concerning the Laws teneri. . . .'
256 RESPONSIBILITY OF STATES
French territory. As this act of the sentry violated
French territorial supremacy, Germany disowned and
apologised for it, and paid a sum of fifty thousand francs
to the widow of the deceased as damages. The sentry,
however, escaped punishment because he proved that
he had acted in obedience to orders which he had mis-
understood.
(2) On November 26, 1905, Hasmann, a member of
the crew of the German gunboat Panther,^ at that time
in the port of Itajahy in Brazil, failed to return on
board his ship. The commander of the Panther -sent
a search party, comprising three officers in plaia
clothes and a dozen non-commissioned officers and
soldiers in uniform, on shore for the purpose of finding
the whereabouts of Hasmann. This party, during the
following night, penetrated into several houses, and
compelled some of the residents to assist them in their
search for the missing Hasmann, who, however, could
not be found. He voluntarily returned on board the
following morning. As this act violated Brazihan
territorial supremacy, Brazil lodged a complaint with
Germany, which, after an inquiry, disowned the act
of the commander of the Panther, formally apologised
for it, and pimished the commander of the Panther by
relieving him of his command.^
(3) On July 15, 1911, while the Spanish were in occu-
pation of Alcazar in Morocco, M. Boisset, the French
consular agent, who was riding back to Alcazar from
Suk el Arba with his native servants, was stopped at
the gate of the town by a Spanish sentinel. The
sentinel refused to allow him to enter unless he and his
servants first dehvered up their arms. As M. Boisset
refused, the sentinel barred the way with his fixed
^ See B.G., xiii. (1906), pp. 200- on its way to the Far East during
206. the Russo-Japanese War, fired upon
' Another example occurred in the Hull fishing fleet off the Dogger
1904, when the Russian Baltic fleet, Bank. See below, vol. ii. § S.
\ ^ ACTS OP STATE ORGANS 257
bayonet and caH«d out tlie guard. M. Boisset's horse
r^r^, and the sentinel thereupon covered him with
liiRTifl^^^ After parleying to no purpose with the guard,
to wnbi^ he explairife4 who he was, the French consular
agent wa^ conducted by an armed escort of Spanish
soldiers to^the Spanish barracks. A native rabble
followed upon the\eels of the procession and cried out :
' The French consular agent is being arrested by the
Spaniards.' Upon arriving at the barracks M. Boisset
had an interview with a Spanish oflScer, who, without
in any way expressing regret, merely observed that
there had been a misunderstanding {equivocacione), and
allowed the French consular agent to go his way. It
is obvious that, as consuls in Eastern non-Christian
countries, Japan now excepted, are exterritorial and
inviolable, the arrest of M. Boisset was a great injury
to France, which lodged a complaint with Spain. As
promptly as July 19 the Spanish Government tendered
a formal apology to France, and instructed the Spanish
commander at Alcazar to tender a formal apology to
M. Boisset.
(4) In December 1915, during the World War, and
at a time when the United States was still neutral, an
Austrian submarine fired upon an American merchant-
man, flying the Am.erican flag, in the Mediterranean.
The United States Governmenb demanded an apology
for this ' dehberate insult to the flag of the United States,'
the punishment of the submarine commander, and
reparation for damage done.^
But it must be specially emphasised that a State
never bears any responsibility for losses sustained by
foreign subjects through legitimate acts of administra-
tive officials and military and naval forces. Individuals
who enter foreign territory submit themselves to the
law of the land, and their home State has no right to
* A.J., X. (1916), Special Supplement, p. 306.
VOL. I. R
258 EESPONSIBILITY OF STATES
request that they should be otherwise treated than as
the law of the land authorises a State to treat its own
subjects.^ Therefore, siace the Law of Nations does
not prevent a State from expeUing aliens, the home
State of an expelled alien cannot request the expelling
State to pay damages for the losses sustained by him
through having to leave the country. Therefore,
further, a State need not make any reparation for
losses sustained by an aUen through legitimate measures
taken by administrative officials and mihtary forces in
time of war, insurrection,^ riot, or public calamity,
such as a fire, an epidemic outbreak of dangerous
disease, and the like.
IV
STATE EESPONSIBILITY FOE ACTS OF PEIVATE PEESONS
See the literature quoted above at the oommenoement of § 148, and especially
Moore, vi. §§ 1019-1031, Borohard, §§ 86-96, and Schoen, op. cit. pp.
63-80. See also Arias in A.J., vii. (1913), pp. 724-765, and Goebel in
A.J., viii. (1914), pp. 802-852.
Vicarious § 164. As regards State responsibility for acts of
in contra- • j ' 'j. • ^ j_ j» n _l j.
distino- private persons, it is first of all necessary not to con-
Orfmii ^°"^*^ *^® original with the vicarious responsibiUty of
State States for internationally injurious acts of private
bihty°for persous. International Law imposes the duty upon
Private ®very State to prevent as far as possible its own subjects.
Persons, and such foreign subjects as hve within its territory,
from committiag injurious acts against other States.
A State which either intentionally and maUciously or
through culpable negligence does not comply with this
duty commits an international delinquency for which
it has to bear original responsibiUty. But it is in
* Provided, however, such law does not violate essential principles of
justice. See below, § 320. » See below, § 167.
ACTS OF PRIVATE PERSONS 259
practice impossible for a State to prevent all injurious acts
which a private person might commit against a foreign
State. It is for that reason that a State must, accord-
ing to International Law, bear vicarious responsibility
for such injurious acts of private individuals as are
incapable of prevention.'
§ 165. Now, whereas the vicarious responsibihty of vicarious
States for ofl&cial acts of administrative officials andyy\^°fgj'
military and naval forces is unlimited and unrestricted, Acts of
their vicarious responsibihty for acts of private persons Persons
is only relative. For their sole duty is to exercise due on^Jf '^^
diligence to prevent internationally injurious acts on
the part of private persons, and, in case such acts have
nevertheless been committed, to procure satisfaction
and reparation for the wronged State, as far as possible,
by punishing the ofienders and compelling them to
pay damages where required. Beyond this limit a
State is not responsible for acts of private persons;
there is in particular no duty for a State itself to pay
damages for such acts if the oHenders are not able to do
it. If, however, a State has not exercised due dili-
gence, it can be made responsible and held to pay
damages.^
§ 166. It is a consequence of the vicarious responsi- Municipal
bility of States for acts of private persons that by the offlnoes
Criminal Law of every civiUsed State punishment is against
severe for certain ofiences of private persons against staitef*
foreign States, such as Ariolation of ambassadors' privi-
leges, libel on heads of foreign States and on foreign
envoys, and other injurious acts.^ In every case that
arises the ofEqnder must be prosecuted and the law
enforced by the courts of justice. And it is further a
consequence of the vicarious responsibihty of States
for acts of private persons that criminal offences of
' See Borohard, § 87. England ooneerning suoh acts, see
* As regards the Criminal Law of Stephen's Digett, Articles 96-103.
260 EESPONSEBILITY OP STATES
private persons against foreign subjects — such offences
are indirectly offences against tte respective foreign
States because the latter exercise protection over their
subjects abroad — ^must be punished according to the
*^ ordinary law of the land, and that the civil courts of
justice of the land must be accessible for claims of
foreign subjects against individuals living under the
territorial supremacy of such land.
Responai- § 167. The vicarious responsibility of States for acts
AotBof In- of insurgents and rioters ^ is the same as for acts of other
su^entB private individuals. Therefore only in case a State by
Rioters, exercising due diligence could have prevented, or im-
mediately crushed, an insurrection or riot, can it be
made responsible for acts of insurgents and rioters. In
other cases the duty of a State concerned is only to
punish according to the law of the land, as soon as peace
and order are re-established, such insurgents and rioters
as have committed criminal injuries against foreign
States. The point need not be mentioned at all were
it not for the fact that, in several cases of insurrection
and riots, clainas have been made by foreign States
against the local State for damages for losses sustained
by their subjects through acts of insurgents or
rioters, and that some writers^ assert that such
claims are justified by the Law of Nations. The
majority of writers maintain, correctly, I think, that
the responsibihty of States does not involve the duty
to repair the losses which foreign subjects have sus-
tained through acts of insurgents and rioters, provided
due dihgence was exercised by the State concerned.
::> Individuals who enter foreign territory must take the risk
of an outbreak of insurrections or riots no less than the
' See Goebel in A.J., viii. (1914), * See for instance, Rivier, ii. p.
pp. 802-852, who supplies valuable 43 ; Brusa in Anmiaire, xvii. pp. 96-
material, but differs from the opinion 137; Bar in jB./., 2nd Ser. i. (1899),
of the author. See also the details pp. 464-481 ; Goebel, op. cit.
given by Borohard, §§ 89-96.
ACTS OP PRIVATE PERSONS 261
risk of the outbreak of other calamities. When they
sustain a loss from acts of insurgents or rioters, they
may, if they can, trace their losses to the acts of certain
individuals, and claim damages from the latter before
the courts of justice. The responsibility of a State for
acts of private persons injurious to foreign subjects
reaches only so far that its courts must be accessible
to the latter for the purpose of claiming damages from
the offenders, and must punish such of those acts as are
criminal. And in States — as, for instance, France — ^which
have such Municipal Laws as make the town or the
county where an insurrection or riot has taken place
responsible for the pecuniary loss sustained by indi-
viduals during those events, foreign subjects must be
allowed to claim damages from the local authorities
for losses of such a kind. But the State itself
never has by International Law a duty to pay-^
such damages.
The practice of the States agrees ^ with this rule laid
down by a majority of writers. Although in a number
of cases several States have paid damages for losses of
this kind, they have done it, not through compulsion
of law, but for poBtical reasons. In most cases in which
the damages have been claimed for such losses, the
States concerned have refused to comply with the
request.^ As such claims have, during the second half
of the nineteenth century, frequently been tendered
against American States which have repeatedly been
the scene of iusurrections, several of these States
in commercial and similar treaties which they con-
cluded with other States expressly stipulated ^ that
^<}oebel [op. cit., pp. 819-831) N-E.G., 2nd Ser. ix. p. 474
asserts that the practice of the (Germany and Mexico) ; xv. p. 840
States has undergone a change, bat (France and Mexico) ; xix. p. 831
I cannot see that he has proved his (Germany and Colombia); xxii. p. 308
assertion. (Italy and Colombia). A full list
' See the cases in Calvo, iii. §§ of such treaties is given by Arias
1283-1290. in A.J., vii. (1913), pp. 755, 756,
' See, for instance, Martens, 759, 760, and Borchard, p. 244 n.
262
RESPONSrBrLITY OP STATES
they are not responsible ^ for losses sustained by foreign
subjects on their territory through acts of insurgents
and rioters.
The Institute of International Law has studied the
matter, and has proposed ^ the following Beglement con-
cerning it :
(1) Independently of the case in which indemnities are due
to foreigners by virtue of the general laws of the country,
foreigners have a right to compensation when they are injured
as to their person or as to their property in the course of a riot,
of an insurrection, or of a civil war :
(a) When the act from which they have suffered is directed
against foreigners as such in general, or against them as under
the jurisdiction of a certain State, or
(6) When the act from which they have suffered consists in
closing a port without due and proper previous notijBcation, or
in retaining foreign ships in a port, or
(c) When the injury is the result of an act contrary to the
laws committed by a government official, or
{d) When the obligation to compensate is established by
virtue of the general principles of the law of war.
(2) The obligation is equally well established when the injury
has been committed (No. 1, a and d) on the territory of an
insurrectionary Giovemment, whether by this Government itself,
or by one of its functionaries.
On the other hand, certain demands for indemnity may be
set aside when they concern facts which occur after the Govern-
ment of the State to which the injured person belongs has recog--
nised the insurrectionary Grovemment as a belligerent Power,
and when the injured person has continued to keep his domicile
or his habitation on the territory of the insurrectionary Govern-
ment.
As long as the latter is considered by the Government of the
person alleged to be injured as a beUigerent Power, the demand
may only be addressed, in the case of paragraph 1 of Article 2,
to the insurrectionary Government and not to the legitimate
Government.
* The question of responsibility for Foreigners,' in the lUinoit Law
losses of foreign citizens during a Review (January, 1914), vol. viii.
revolution is treated with excellent No. 6.
jadgment by Hyde in his paper ' At its meeting at Keuchatel in
on ' Mexico and the Claims of 1900 ; see Annvaire, xviii. p. 2S4.
ACTS OP PRIVATE PERSONS 263
(3) The obligation to compensate disa2P§!|rs when the injured
persons are themselves a cause of the event which has brought
the injury .1 Notably no obhgation exists to indemnify those
who have returned to the country or who wish to give themselves
up to commerce or industry there, when they know, or ought
to know, that troubles have broken out, nor to indemnify those
who estabUsh themselves or sojourn in a country which offers
no security on account of the presence of savage tribes, unless
the Government of the country has given express assurance to
immigrants.
(4) The Govermnent of a Federal State composed of a certain
number of smaller States, which it represents from an inter-
national point of view, may not plead, in order to avoid the
responsibility which falls upon it, the fact that the constitution
of the Federal State does not give it the right to control the
member-States, nor the right to exact from them the discharge
of their obligations.
(5) The stipulations mutually exempting States from the
duty of giving their diplomatic protection ought not to comprise
the cases of refusal of justice, or of evident violation of justice or
of International Law.^
' For example, in the case of It considers that the States which,
conduct which is particularly pro- on account of extraordinary circum-
vocative to a crowd. stances, do not feel themselves at all
' The Institute of International in a position to assure protection
Law has likewise — see Annvaire, in a sufficiently efficacious manner
xviii. pp. 253 and 256 — expressed to foreigners on their territory, can
the two following voe,ux : — only avoid the consequences of this
(a) The Institute of International condition of things by temporarily
Law expresses the wish that the prohibiting foreigners from entering
States should avoid inserting in their territory,
treaties clauses of reciprocal irre- (5) Recourse to international com-
sponsibility. It considers that these missions of inquiry and to inter-
clauses are wrong in exempting national tribunals is in general
States from the fulfilment of their recommended for all diflferenees
duty of protecting their nationals which may arise on account of injury
abroad and of their duty of pro- to foreigners in the course of a riot,
teoting foreigners on their territory. an insurrection, or of civil war.
CHAPTER lY
THE LEAGUE OF NATIONS EMBODYING THE
FAMILY OF NATIONS
BIRTH AND GENERAL CHARACTER OP THE LEAGUE
How the § 167a. The League of Nations owes its existence, in
arore"^ the first instance, to private initiative. Soon after the
World War had broken out, a group of men in England,
under the chairmanship of Viscount Bryce, combiaed
for the purpose of working out a draft scheme of a
League for the avoidance of war, and they published,
in February 1915, Proposals for the Avoidance of War,
with a prefatory note by Viscount Bryce. The text of
these proposals was sent to a number of pubUcists for
criticism, and in 1917 the same group of men published
the final result of their work in a pamphlet under the
heading. Proposals for the Prevention of Future Wars, by
Viscount Bryce and others. The movement initiated
by the so-called Bryce Committee led to the foundation
of ' The League of Nations So6iety ' in London, in 1915,
whose programme was in the main: That a treaty
should be made to establish a League of Nations ; that
all disputes between the members of the League should
be settled either by arbitration or by a Council of Con-
ciUation ; that Conferences of the League should be
held from time to time to consider international matters
and to codify rules of International Law. In 1918 a
BIETH AND GENERAL CHAEACTER OF THE LEAGUE 265
rival of tke League of Nations Society was founded —
* The League of Free Nations Association ' ; but soon
afterwards the two rival societies amalgamated, imder
the title of ' The League of Nations Union.'
A similar movement arose in the United States of
America, where in 1916 was foimded * The League to
enforce Peace,' under the chairmanship of ex-President
H. Taft, which demanded the foundation of a League
whose programme should be in the main: That all
justiciable disputes between the members of the League
should be settled by an International Court of Justice ;
that all other disputes should be submitted to a Council
of Conciliation ; that economic and miUtary forces
should be used against any member that should resort
to hostihties without previously having submitted the
dispute either to an International Court of Justice or to
a Coxmcil of ConciHation ; and that Conferences of the
members of the League should take place from time to
time to formulate and codify rules of International Law.
A great mmaber of drafts of a Constitution of the pro-
posed League were published by private individuals,
and several Governments also began to give their atten-
tion to the movement. Thus the Governments of
Sweden, Denmark, and Norway each appointed a com-
mittee whose combined labours resulted in the Avant-
projet de Convention relatif a une Organisation juridique
internaiionale, Stockholm, 1919. And the Swiss Govern-
ment hkewise appointed a committee, and published,
in 1919, an Avant-prqjet d'un Facte federal de la Liguedes
Nations. Meanwhile the Government of the United
States, under President Wilson, as well as the British
Government, became interested in the movement, and
pledged themselves to found a League of Nations as
soon as the war should come to an end. Accordingly,
when the Peace Conference met in Paris in 1919, a
separate committee was appointed to work out a draft
266
THE LEAGUE OP NATIONS
treaty of a League of Nations. This committee com-
prised the representatives of fourteen Powers, namely,
the British Empire, America, France, Italy, Japan — the
five Great Powers — and Belgimn, Brazil, China, Czecho-
slovakia, Greece, Poland, Portugal, Roumania, and
Serbia. This committee laid a draft of a Covenant of
the League of Nations before the Conference, which was
adopted on February 14, 1919. The draft was pub-
lished, and then representatives of the following thirteen
neutral Powers were interrogated by the committee
for the purpose of hearing their views, namely :
Argentina, ChUi, Colombia, Denmark, Holland, Norway,
Paraguay, Persia, Salvador, Spain, Sweden, Switzer-
land and Venezuela. At the same time a number of
pubhcists were asked to send in observations on the
draft, which was then amended. A second draft was
worked out, and was adopted by the Conference on
April 28, 1919. Thus came into existence the Cove-
nant of the League of Nations,' which forms Part I of
the Treaties ofPeace.^
The Mem- § 1676. According to Article 1 of the Covenant, the
of the^ League is to consist of original members, and of such
League, members as are admitted later.
Original members of the League are the Allied and
Associated Powers — signatories of the Treaties of Peace,
— and such neutral States as were invited to become, and
became members within two months of the coming into
force 2 of the Covenant. Accordingly the following States
and self-governing Donunions became original members :
[The United States of America,] ^ Belgium, Bolivia, Brazil,
the British Empire, Canada, Australia, South Africa,
• See below, §§ 568e-5683. Both student.
French and English texts are ' January 10, 1920.
authoritative. The English text of ' The United States is named in
the Covenant has been separately the treaties as an original member
published as a Parliamentary Paper of the League ; but as it has not so
(Miso., No. 3 (1919), Cmd. 151), and far ratified any of them, it is not
should be in the hands of every at present a member.
BIRTH AND GENERAL CHARACTER OF THE LEAGUE 267
New Zealand, India, China, ^ Cuba, Ecuador, France,
Greece, Guatemala, Haiti, the Hedjaz, Honduras, Italy,
Japan, Liberia, Nicaragua, Panama, Peru, Poland,
Portugal, Roumania, the Serb-Croat-Slovene State,
Siam, Czecho-Slovakia, Uruguay — signatories of the
Treaties of Peace; and the Argentine Republic,
Chili, Colombia, Denmark, the Netherlands, Norway,
Paraguay, Persia, Salvador, Spain, Sweden, Switzer-
land, Venezuela — neutral States which accepted the
invitation to become members.
As regards States which desire to join the League
later, paragraph. 2 of Article 1 lays down the rule that
any fully self-governing State, dominion, or colony may
become a member of the League, if its admission is
agreed to by two-thirds of the Assembly of the League,
provided that it shall give efEective guarantees of its
sincere inteiition to observe its international obliga-
tions, and shall accept such regulations as may be pre-
scribed by the League in regard to its military, naval,
and air forces and armaments. It is apparent that
thereby the door is left open for every civilised State tOj-
become in time a member of the League.
However this may be, any member of the League
may, according to paragraph 3 of Article 1, cease to
be a member, provided it gives two years' notice in
advance, and has, at the time of its withdrawal, fulfilled
aU its international obhgations, and all its obKgations
under the Covenant of the League. Further, according
to paragraph 4 of Article 16, any member of the League
which has violated any clause of the Covenant may be
expelled from the League. Again, according to Article
26, no future amendment of the Covenant shall bind
any member of the League which signifies its dissent, but
in that case it shall cease to be a member of the League.
• China signed the Treaty of Peace with Austria, but not the Treaty of
Peace with Germany.
268
THE LEAGUE OF NATIONS
Essential § 167c. Since the Covenant of the League distin-
ofthe guishes between original members and others, and
League, gj^^g ^ Small number of civilised States are not yet
members of the League, the character of the League
appears at the first glance to be somewhat doubtful.
It is asserted that the League is a mere confederation
of States {Staatenbund), but it is certainly not. One
speaks of a confederation of States {Staatenbund) when
a number of full sovereign States link themselves
together into a union for the maintenance of their
external and internal independence, such union pos-
sessing organs of its own which are vested with a certain
amount of power over the member-States.^ However,
the Covenant of the League of Nations in no way
gives the three constitutional organs of the League any
power whatever over the member-States of the League.
The chief organ of the League, the Assembly, requires,
apart from matters of mere procedure, imanimity for
all its decisions ; and the Council, although it is, so to
say, the Executive of the League, and possesses very
great influence, does not possess any compulsory powers
over the member-States, since its decisions are in the
main only recommendations.
It is likewise asserted that the League is a mere
alliance. However, although the League shows traces
of an alliance, because the members (Article 10 of the
Covenant) guarantee to one another their territorial
integrity against external aggression, it is nothing of
the kind. One speaks of an alliance ^ when two or
more States conclude a treaty for ofience or defence
or both. Although aUiances create a union between
the allies, such a union does not possess any organs of its
own, nor is there anything else but defence or offence
within the sphere of action of an aUiance. On the
other hand, the League of Nations possesses a number
> See above, § 88. ' See below, § 569.
BIRTH AND GENERAL CHARACTER OP THE LEAGUE 269
of organs of its own, and its sphere of action comprises
a great many more matters than mutual defence of the
members.
If looked upon without prejudice, the League appears
to be a league absolutely sui generis, a union of a kind
which has never before been in existence ; and its con-
stitutional organ&j as well as its functions, are likewise
of an unprecedented kind. Taking all this into con-
sideration, the conclusion is obvious that the League
of Nations is intended to take the place of what hitherto
used to be called the Family of Nations, namely, the
community of civilised States, for the international
conduct of which International Law has grown up.
The Covenant of the League is an attempt to organise
the hitherto unorganised community of States by a
written constitution. That this constitution is not
complete and perfect matters as Httle as that for the
moment there are still some civiUsed States outside the
League, because this constitution will gradually become
more complete and perfect, and the time may not be
very distant when all civilised States, without excep-
tion, wiU be members.
Be that as it may, through this constitution, defining
the rights and duties between the League and the
member-States, the League^ appears to be a subject
of International Law and an International Person side
by side with the several States. And it is necessary to
emphasise that the League is in every respect an Inter-
national Person sui ^enerw, something not to be Hkened to
anything else, for it is neither a State nor a Federal State
{Buniesstaat), nor a confederation of States {Staaten-
bund), nor a mere alliance. As already stated, in its
* Only the League itself is a the Covenant of the League, but these
subject of International Law, not the are neither international nor muni-
organs of the League such as the cipal rights and duties, but simply
Assembly, the Council, and the rights and duties within the organiaa-
Seoretariat. These organs certainly tion set up by the Covenant. See
have rights and duties according to below, § 289 n.
270 THE LEAGUE OF NATIONS
essence the League is nothing else than the organised
Family of Nations. Not being a State, and neither own-
ing territory nor ruHng over citizens, the League does not
possess sovereignty in the sense of State sovereignty.
However, being an International Person sui generis,
the League is the subject of many rights which, as a
rule, can only be exercised by sovereign States. For
instance, the League possesses the so-called right of
legation ^ ; is able to exercise sovereign rights over such
territories as are not under the sovereignty of any
State (Saar Basin) ^ ; is able to intervene in the internal ^
as well as the external affairs of a State ; is able to
exercise a protectorate over a weak State (Danzig) * ; is
able to declare war and make peace ; and the like.
It should be noted that, in case the League came to
an end by dissolution, the Family of Nations would
revert to its unorganised condition previous to the
establishment of the League. But the League ought
by its nature to be indissoluble, and it is to be hoped
that the question of its dissolution will never arise.
II
THE CONSTITUTION OP THE LEAGUE
The Con- § 167(Z. The constitution of the League, as provided
in general for by the Covenant, is not in all details complete,
of the because several essential matters are left to be settled
later. But the Covenant calls into existence three
constitutional organs, namely, the Assembly, the
Council, and the Permanent Secretariat. It also
(Article 7) fixes the seat of the League at Geneva in
' See below, §§ 358-362. States to protect minorities. See
^ See below, § 568e. below, § 568A.
' For example, in the smaller * See above, § 93.
THE CONSTITUTION OP THE LEAGUE 271
Switzerland, although the Council may at any time
decide that the seat of the League shall be estabhshed
elsewhere. Besides the three constitutional organs,- the
Covenant orders the estabHshment of a number of other
organs of the League, in particular a Permanent Arma-
ment Commission, an International Court of Justice,
a Mandatory Commission, and such other organs as
are necessary to secure fair and humane conditions of
labour. And with regard to all organs and positions
under, or in connection with, the League, including the
Secretariat, Article 7 lays down the rule that they shall
be open equally to men and women ; that representa-
tives of the members of the League in the Assembly
and in the Council, and likewise all officials of the
League, when engaged on the business of the League,
shall enjoy diplomatic privileges and immunities ^ ; and
that the buildings and other property occupied by the
League or its oflScials or by representatives attending
the meetings of the League shall be inviolable.
It must be specially noted that the constitution of
the League is in no way immutable, and that alterations
can be made without a unanimous vote of all the
member-States. According to Article 26, amendments
to the Covenant of the League will take efiect, if the
States represented in the Council and the majority of
the States represented in the Assembly of the League
agree to them. Indeed, no such amendment will bind
any member of the League which signifies its dissent
therefrom, but in any case of such dissent the State con-
cerned ceases to be a member. Be that as it may, the
mere fact that the Covenant provides for amendments
makes it quite clear that the Powers did not intend to
produce an unalterable constitution for the League. The
fact is that the Covenant offers only the partly filled
framework of the constitution of the League, which in
' See below, §§ 385-396.
272 THE LEAGUE OF NATIONS
time will assuredly have to undergo alterations and
additions.
The As- § 167e. The Assembly is really the Conference of
sem ly. ^j^^ members of the League. According to Article 3,
each member of the League may send three represen-
tatives to the Assembly, but no member has more than
one vote. The Assembly meets at stated intervals,
and from time to time as occasion may require, at the
seat of the League, or at such other place as may be
decided upon. The first meeting of the Assembly
(Article 5) is to be summoned by the President of the
United States of America. The Assembly decides
(Article 5) all matters of procedure, including the
appointment of committees, by a mere majority vote,
but all other matters can only be decided by a imanimous
vote, unless — see, for instance. Articles 1, 4, 6, and 26 —
the contrary is expressly provided for by the Covenant,
or by some other agreement.
As regards the sphere of action of the Assembly, the
Covenant (Article 3) says that the Assembly may deal
at its meetings with any matter within the sphere of
action ''■ of the League or affecting the peace of the world.
However, it is apparent that all such matters are ex-
cluded from the sphere of action of the Assembly as
are by the Covenant exclusively reserved for the sphere
of action of the Council. Be that as it may, the Cove-
nant particularly mentions that in the following matters
the Assembly is competent to act :
(1) According to Article 1, the Assembly decides by a
vote of two-thirds majority whether a State, not being
an original member, is to be admitted into the League.
(2) According to Article 11, it is the right of each
member of the League to draw the attention of the
Assembly to any such circumstances affecting iater-
' The restriotion of the sphere of paragraph 8 of Article 15, and in
action of the League, stipulated in Article 21, is discussed below, § 167».
THE CONSTITUTION OF THE LEAGUE 273
national relations as threaten to disturb international
peace, or the good understanding between nations upon
which peace depends.
(3) According to paragraph 9 of Article 15, the
Council may refer any dispute, which has come to it
for the purpose of inquiry, to the Assembly. And
such dispute must be referred to the Assembly at the
request of either party, provided that such request be
made within fourteen days after the submission of the
dispute to the Council.
(4) According to Article 19, the Assembly may from
time to time advise the reconsideration, by members of
the League, of treaties which have become inapplicable,
and the consideration of international conditions whose
continuance might endanger the peace of the world.^
(5) According to Article 4, the Assembly from time
to time selects the four representatives of the minor
States who, together with the representatives of [the
United States of America],^ the British Empire, France,
Italy, and Japan, constitute the Council of the League.
(6) According to Article 6, the Council may only
appoint the Secretary-General if the selected individual
is approved of by a majority vote of the Assembly.
(7) According to paragraph 2 of Article 4, only with
the approval of a majority vote of the Assembly may
the Coimcil increase the number of its members, which
at first is fixed at nine.
§ 167/. The Council is, so to say, the Executive of the The
League. According to Article 4, the Council consists, '^°™"'-
at first, and as a rule, of nine members. The five Great
Powers — [the United States of America],^ the British
Empire, France, Italy, and Japan — are always repre-
sented in the Council by a member. The minor
Powers send four representatives into the Council,
but the selection of the four minor Powers who
1 See below, § 167* (4). ' See above, § 167&, n.
VOL. I. S
274
THE LEAGUE OP NATIONS
are to send these representatives is to be made
from time to time by the Assembly at its discre-
tion. Until the Assembly shall have first made such
a selection, the representatives of Belgium, Brazil,
Greece, and Spain are to represent the minor Powers
on the Coimcil. However, it is only as a rule that
the Council comprises no more than nine members,
because in exceptional cases such States as are not
represented in the Council have the right to send addi-
tional representatives. Paragraph 5 of Article 4 stipu-
lates : ' Any member of the League not represented on
the Coiracil shall be invited to send a representative to
sit as a member at any meeting of the Council during
the consideration of matters specially afEecting the
interests of that member of the League.' And although
at first the Council wiU comprise nine membeis only,
the possibility of a permanent increase in the number of
its members is provided for by paragraph 2 of Article 4,
which stipulates : ' With the approval of the majority
of the Assembly, the Council may name additional
members of the League whose representatives shall
always be members of the Council ; the Council with
like approval may increase the number of members of
the League to be selected by the Assembly for repre-
sentation on the Council.' It is obvious that this
stipvdation is meant to meet the cases of Germany and
Russia when once they are admitted to the League,
and are to be considered as Great Powers ; but the
case of China, or any other Power which might at
any time become a Great Power, is likewise met by
this stipulation.
Meetings of the Council (Article 4) shall take place
from time to time as occasion may require, but at least
once a year, at the seat of the League, or at such other
place as may be decided upon. The Council — ^just like
the Assembly — decides (Article 5) all matters of pro-
THE CONSTITUTION OP THE LEAGUE 275
cedure, including the appointment of committees, by
a majority vote, but all other matters can only be
decided by a unanimous vote, unless the contrary is
expressly provided for, either by the Covenant or by
another agreement.
As regards the sphere of action of the Council,
the Covenant (Article 4) — just as in the case of the
Assembly — says that the Council may deal at its meet-
ings with any matter within the sphere of action ^ of
the League or affecting the peace of the world, and it
may therefore be stated that aU such matters of inter-
national interest fall within the sphere of action of the
Council as are not by the Covenant exclusively reserved
for the sphere of action of the Assembly. " However, the
Covenant mentions that the following seven matters
are particularly to be dealt with by the Council :
(1) Appointment of the Secretary-General of the
League and confirmation of the appointments of the
staff of the Secretariat made by him (Article 6).
(2) Formidation of plans for general disarmament,
and for check of the manufacture, by private enter-
prise, of munitions and implements of war, and the
appointment of the members of the Permanent Arma-
ment Commission (Articles 8 and 9).
(3) Advice to the members of the League with regard
to the steps they shall take when any one of them is
threatened with aggression (Articles 10 and 11).
(4) Inquiry into international disputes which the
parties have not settled by other means, report on such
disputes, and recommendations with regard to their
settlement (Articles 12, 15, and 17).
(5) Formulation of plans for the estabhshment of a
Permanent Court of International Justice (Article 14).
(6) Recommendation as to what effective military,
* The restriction of the sphere of of Avtiole 15 and Article 21 of the
aotion of the League by paragraph 8 Covenant is discussed below, § 167t.
276
THE LEAGXJE OP NATIONS
naval, or air forces the members of the League shall
severally contribute to the armed forces to be used to
protect the Covenants of the League (Article 16).
(7) Drawing up of the special charters or mandates
concerning such territories as are to be handed over
for administration to Mandatory States ; further, the
establishment, at the seat of the League, of a ilandatory
Commission to receive and examine the annual reports
of the Mandatory Powers, and to advise the Council on
aJl matters relating to the observation of the mandates
(Article 22).
As regards the relations between the Coimcil and the
Assembly, they are not defined by the Covenant. It
would seem that the Council is absolutely independent
of the Assembly, just as the Assembly is absolutely
independent of the CoundL The only influence which
the Assembly indirect^ has upon the Council derives
from the fact that, according to Article 4, the Assembly
shall from time to time make the selection of those
four minor States which shall have the right to send
representatives into the Council side by side with the
representatives of the five Great Powers. And the only
influence which the Council has upon the Assembly
derive from the fact that, according to Article 26,
members represented in the Assembly can only make
amendments to the Covenant provided that the States
represented in the Council unanimously agree. So
much is certain, that the relations between the Council
and the Assembly are in no way comparable with the
relations between the Cabinet and Parliament in a
constitutionally governed State, because the Council
does not depoid on the Assembly as a Cabinet depends
upon Parliament. And, if looked upon from a certain
point of view, the centre of gravity of the League would
seem to rest within the Council, and not within the
Assembly, although the latter is the chief organ of the
THE CONSTITUTION OF THE LEAGUE 277
League. This is the case, because the five Great Powers
are predominant witMn the Council, witli tie conse-
quence that ih.e influence of the Great Powers within
the League will be enormous. There would be no objec-
tion to this if the sphere of action of the Council were
restricted to mere executive measures, and to measures
of control, the appointment of offidak, and the like.
However, accoiding to the Covenant, as it stands, the
sphere of action of the Council is a much wider one,
and the important task of the inquiry into, and settle-
ment of, such international disputes as the parties cannot
settle by other means, is entorelj handed over to the
Council.^
§ 167^. The Permanent Secretariat of the League The Per-
(Article 6) is the body of secretaries and clerks who are ^^*
permanent officials in the service of the League for the *'™'-
performance of all secretarial business. The Secretariat
is to be established at Geneva, the seat of the League.
It comprises a Secretary-Greneral, and such number of
secretaries and staff as may be required. The Secre-
tary-General, other than the first, is to be appointed by
tiie Council, with the approval of the majority of the
Assembly. On the otiher hand, the secretaries and staff
are appointed by the Secretary-General with the approval
of the Council. The e^)enses of the Secxetariat are
borne by the member-States of the League in accord-
ance with the apportionment of the expenses of the
International Bureau of the Universal Postal Union.*
As regards the duties of the Secxetariat, the Covenant
specifies some of them in three articles :
(1) According to Article 6, the Secretary-General
shall act in that capacity at all meetings of the Assembly
as well as of the Council. However, it is quite obvious
that the Secretary-General need not in person act as
secretary at aU sticb meetings: he may at any time
» S*e belov, J 167* (21. * S« below. § 465.
278 THE LEAGUE OP NATIONS
delegate this duty to one or more of the secretaries
who serve under him.
(2) According to Article 15, the Secretary-General is
the intermediary between the Coimcil and member-
States of the League involved in a dispute which has to
be submitted to the Council for inquiry.
(3) According to Article 18, the Secretariat must
register, and, as soon as possible, publish, every treaty
entered into by any member-State of the League.
These are the duties of the Secretariat specified by
the Covenant ; but it is obvious that it has many other
duties, which derive from the fact that it always acts as
the intermediary for communications, not only between
the Council and the Assembly, but also between the
several members of the Council, between the several
member-States of the League with regard to all matters
in which the League is concerned, between the Council
and the Court of Justice and the several Commissions
which are to be set up according to the Covenant,
and lastly between the Council and all the International
Bureaux which, according to Article 24, are to be placed
under the direction of the League, Moreover, it is in
the discretion of the Council at any time to add to the
business of the Secretariat.
Various § 167A. Besidcs the Assembly, the Council, and the
Organs Secretariat, which are constitutional organs of the
League League, the Covenant provides for the establishment
by the Council of various other organs.
(1) The Permanent Armament Commission (Articles
8 and 9) advises the Council with regard to the reduc-
tion of national armaments to the lowest point con-
sistent with national safety and the enforcement by
common action of international obhgations.^
(2) The Permanent Court of International Justice^
(Article 14) is competent to hear and determine any
' See below, § 1611. = See below, § 4766.
THE CONSTITUTION OP THE LEAGUE 279
dispute of an international character which the parties
thereto submit to it. The Court may likewise, when
asked to do so by the Council or the Assembly, give an
advisory opinion upon any dispute or question.^
(3) The Permanent Mandatory Commission (Article
22) is to receive and examine the annual reports of those
member-States of the League which have been given a
mandate to administer those cololues and territories
which, as a consequence of the World War, have ceased
to be under the sovereignty of the States formerly
governing them, and which are inhabited by peoples
not yet able to stand by themselves under the strenuous
conditions of the modern world. This Commission is
Ukewise to advise the Council on all matters relating to
the observance of the mandates.^
(4) The General Labour Conierence and the Inter-
national Labour Office, estabhshed under the Inter-
national Labour Convention and Article 23(a) of the
Covenant, which stipulates that the members of the
League ' will endeavour to secure and maintain fair
and humane conditions of labour for men, women,
and children, both in their own countries and in all
countries to which their commercial and industrial
relations extend, and for that purpose will establish
and maintain the necessary international organisa-
tions,' are also organs of the League. However, their
establishment is only indirectly provided for by the
Covenant and has been realised by the International
Labour Convention.' Although the International
Labour Office is not directly under the control of the
League, but under the control of a governing body
consisting of twenty-four members, it is nevertheless
entitled to the assistance of the Secretary-General of
the League.
' See vol. ii, pt. i. oh. i. " See below, § 167p.
» See below, §§ 167?, 471c, 568t.
280 THE LEAGUE OF NATIONS
III
THE FUNCTION OF THE LEAGUE
The Two § 167i. While the Family of Nations was iinorganised,
Pu^oses -^ ^^ ^^^^ ^^^ could not, exercise any function, nor
League. (Jevote itsclf to the fulfilment of any tasks. It was then
only the community of the civilised States within which
International Law had grown up, on account of the
fact that the several civilised States were knitted together
through many interests and continuously increasing
intercourse. Up to the end of the World War, the
Family of Nations did not even possess any organ of its
own except the so-called Permanent Court of Arbi-
tration created by the first Hague Peace Conference of
1899. In particular there did not exist any organ of
the Family of Nations for the purpose of discussing and
settling matters of universal interest. Through the
establishment of the League of Nations a great change
has taken place. The Covenant of the League has called
into existence constitutional organs of the Family of
Nations, so as to enable it now to discuss and settle
matters of common international interest when they
arise. This becomes apparent from the following text
of its preamble : * The High Contracting Parties, in
order to promote international co-operation and to
achieve international peace and security by the accept-
ance of obUgations not to resort to war, by the prescrip-
tion of open, just, and honourable relations between
nations, by the firm establishment of the understandings
of international law as the actual rule of conduct among
Governments, and by the maintenance of justice and a
scrupulous respect for all treaty obligations in the deal-
iiigs of organised peoples with one another, agree to
this Covenant of the League of Nations.' In spite of
the somewhat involved language of this preamble, it
THE FUNCTION OF THE LEAGUE 281
is obvious that the League is to serve two difEerent
purposes, namely, the maintenance of international
peace and the promotion of international co-operation.
These two purposes are to be realised by four means,
namely : By the acceptance of obhgations not to resort
to war ; by the prescription of open, just, and honour-
able relations between nations ; by the firm estabhsh-
ment of the understandings of International Law as
the actual rule of conduct among governments ; and
by the maintenance of justice and a scrupulous respect
for all treaty obligations. Moreover, for the accomplish-
ment of these two purposes already mentioned, the Cove-
nant sets the League a number of tasks. These may be
divided into three groups, in so far as they are connected
with international peace and security, with guardian-
ship over peoples who are not yet able to govern them-
selves, and with international co-operation regarding
matters of international interest. While details con-
cerning these various tasks will have to be discussed
separately in the following pages, attention must at
once be drawn to two stipulations of the Covenant which
somewhat modify and restrict the action of the League.
(1) According to paragraph 8 of Article 15, any dis-
pute concerning a matter which by International Law
is found by the Council to be solely within the domestic
jurisdiction of one of the parties, is exempt from the
sphere of action of the League in case a party to the
dispute claims exemption. This stipulation is intended
to leave the member-States free from interference on
the part of the League with their Immigration Laws,
Ahen Laws, and the Uke.
(2) According to Article 21, nothing in the Cove-
nant ' shall be deemed to afiect the vahdity of inter-
national engagements such as treaties of arbitration
or regional understandings hke the Monroe Doctrine for
securing the maintenance of peace.' This stipulation
282 THE LEAGUE OF NATIONS
was adopted to avoid interference by the League with
existing or future arbitration treaties, with the poUcy
of the United States which finds expression in the
Monroe Doctrine/ with existing or future defensive alli-
ances, guarantee treaties, and the hke.
Peaoefui § 167A. The avoidauce of war by the peaceful settle-
nTent^of mcut of international disputes is one of the most im-
Stionai portant tasks of the League. The Covenant lays down
Disputes, four general principles concerning this task.
The first is comprised in Article 11, according to
which any war or threat of war, whether immediately
afiecting any of the members of the League or not, is
declared a matter of concern to the whole League, and
the League has the right to take any action that may
be deemed wise and efEectual to safeguard the peace
of the world. And it is particularly declared to be the
' friendly right ' of each member of the League to draw
the attention of the Assembly or of the Council to any
circumstances afiecting international intercourse which
threaten to disturb international peace, or the good
understanding between nations upon which peace
depends.
The second principle, comprised in Article 12, is that,
should a dispute arise between members of the League,
which has not been adjusted by the ordinary processes
of diplomacy, the conflicting parties must in no case
resort to war without having previously submitted it
either to arbitration or to an inquiry by the Council,
and until three months after the award has been
given by the arbitrators or the CouncU has concluded
its inquiry, and made a recommendation for settling
the dispute. The award of the arbitrators shall be
made within reasonable time, and the recommendation
of the Council shall be made within six months after
the dispute has been submitted to inquiry.
» See above, §§ 47, 139.
THE FUNCTION OP THE LEAGUE 283
The third general principle, comprised in paragraph
4 of Article 13 and paragraph 6 of Article 15, is that no
party is allowed to resort to war against such other
party as complies with the award of the arbitrators or
with the unanimous recommendation of all members of
the Council, other than those representing parties to
the dispute.
The fourth general principle, comprised in Article 16,
is that, should any member-State of the League dis-
regard the stipulations of Articles 12, 13, or 15, and
resort to war without having previously submitted the
dispute to arbitration or to inquiry by the Council, or
resort to war against such other member-State as com-
phes with the award of the arbitrators or the unanimous
recommendations of all members of the Council, other
than those representing the parties at issue, ' it shall
ipso facto be deemed to have committed an act of war
against all other members of the League/ And in this
case the other members of the League must immediately
subject the guilty member to (1) the severance of all
trade or financial relations, (2) the prohibition of all
intercourse between their nationals and its nationals,
and (3) the prevention of all financial, commercial, or
personal intercourse between its nationals and the
nationals of any other State, whether a member of the
League or not. Apart from this, the Council is to
recommend in such cases what efiective mihtary, naval
or air force the members of the League shall each con-
tribute to the armed forces to be used against the guilty
member. In order to minimise the loss and incon-
venience resulting from these measures, the members
of the League agree to give mutual support to one
another in the financial and economic measures taken,
and in resisting any special measures aimed at one of
their number by the guilty State. Further, they shall
afford passage through their territory to the forces of
284 THE LEAGUE OP NATIONS
any of the members who are co-operating against the
guilty member. And, lastly, the Covenant-breaking
member may by a unanimous vote of all the members
of the Council, other than its own representative, be
expelled from the League.^
Reduo- § 167Z. If the provisions of the Covenant are efEective
Arma* i» ^^^ avoidance of war, the world can be freed from
ments. fj^^Q burdeu of enormous armaments which were con-
sidered necessary before the World War. For this
reason Article 8 embodies the principle that national
armaments shall be reduced to the lowest point
consistent with national safety, and with the enforce-
ment by common action of international obhgations.
But no hard and fast rule is laid down for such
reduction of armaments ; on the contrary, special
account is to be taken ' of the geographical situation
and circumstances of each State.' The Coimcil is to
formulate plans for efiecting the reduction of armaments,
for the consideration and action of the several members
of the League, and these plans are to be subject to re-
consideration and revision at least every ten years.
After these plans have been adopted by the members
concerned, the limits of armaments fixed by them
cannot be exceeded without the consent of the Council.
And the members of the League must interchange full
and frank information as to the scale of their armaments,
their military, naval, and air programmes, and the con-
dition of such of their industries as are capable of being
adapted to warlike purposes.
Part of the task of reduction of armaments lies in
deahng with the problem of the manufacture, by private
enterprise, of munitions and implements of war, which
lends itself to grave objection. For this reason the
Council is to ' advise how the evil efiects attendant
* As regards details oonoerning tion and by inquiry on the part of
the settlement of disputes by arbitra- the Council, see below, vol. ii.
THE FUNCTION OF THE LEAGUE 285
upon such manufacture can be prevented, due regard
being had to the necessities of those members of the
League which are not able to manufacture the muni-
tions and implements of war necessary for their safety.'
To advise the Council of the League with regard to
the problem of reduction of armaments, a Permanent
Armament Commission is to be established according
to Article 9.
§ 167m. Since the member-States of the League are Guarantee
to reduce their armaments, the League promises to Aggres-
them assistance against external aggression. Article 10 «i°°-
of the Covenant stipulates : ' The members of the
League undertake to respect and preserve as against
external aggression the territorial integrity and exist-
ing poHtical independence of all members of the League.
In case of any such aggression, or in case of any threat
or danger of such aggression, the Council shall advise
upon the means by which this obligation shall be
fulfilled.'
It is to be noted that the League guarantees the terri-
torial integrity of the member-States against external
aggression only. No guarantee of territorial integrity
is granted against revolutionary movements within the
member-States aspiring to independence and the estab-
lishment of separate States. For this reason Article 10
is not a bar to historical development which might lead
to the disintegration of some of the existing member-
States.
§ 167%. At the outbreak of the World War, and Open
during its continuance, it became apparent that secret ^1^1°'
treaties are a danger to peace. In any case, they would
seem not to be in accordance with democratic govern-
ment, because they may submit the States concerned
to obligations which the peoples, had they known of
the secret treaties, would have refused to undertake.
The demand for so-called open diplomacy having
286 THE LEAGUE OF NATIONS
everywhere arisen. Article 18 meets this demand, to a
great extent, by laying down the rule that in future
every treaty or international engagement must be forth-
with registered with the Secretariat of the League, and
as soon as possible be published, and that no such treaty
or international engagement shall be binding, until so
registered.
It is to be noted that the registration and publica-
tion of future treaties only is stipulated, and that
nothing is said about secret treaties made before the
estabUshment of the League. However, it would seem
that previous secret treaties lose their binding force
unless they are forthwith registered with the Secretariat
because, according to Article 20, all obHgations or
understandings between members of the League which
are inconsistent with the terms of the Covenant are
abrogated.
Recon- 5 167o. There is no doubt that aU treaties and iuter-
tion'^of national conditions are subject to the influence of
^"^d^inter changing circumstances and conditions. Articles 19
national and 20 of the Covenant define the attitude of the League
tions! with regard to such changes.
(1) The estabHshment of the League itseK involves
such a great alteration of circumstances and conditions,
that Article 20 stipulates : ' The members of the League
severally agree that this Covenant is accepted as abro-
gating all obUgations or understandings inter se which
are inconsistent with the terms thereof, and solemnly
undertake that they will not hereafter enter into any
engagements inconsistent with the terms thereof. In
case any member of the League shall, before becoming
a member of the League, have undertaken any obHga-
tions inconsistent with the terms of this Covenant, it
shall be the duty of such member to take immediate
steps to procure its release from such obHgations.' It
is, however, to be noted that Article 21 specifically
THE FUNCTION OP THE LEAGUE 287
lays down the rule that nothing in the Covenant ' shall
be deemed to afEect the validity of iaternational engage-
ments such as treaties of arbitration or regional under-
standings for securing the maintenance of peace.'
For this reason not only iaternational arbitration
treaties, but also guarantee treaties and defensive alli-
ances entered into before the establishment of the
League, need not be dissolved.
(2) A treaty may in consequence of a vital change of
circumstances and conditions become so burdensome
to one of the parties that in justice such party may
demand to be released, either from the whole treaty, or
from a certain stipulation in it. For this reason it
has always been asserted to be a customary rule of
International Law, that omnis cameMio inteUigitur
rebus sic stantibus.^ On the other hand, there was always
a danger that this rule would be improperly used to
hide the violation of treaties behind the shield of law ;
and a number of cases could be quoted where such abuse
has really taken place. To avoid this, and yet to secure
the application of the principle rebus sic stant^Ms to
cases where its application is really justified, Article 19
stipulates that the Assembly may advise the recon-
sidCTation by members of the League of treaties which
have become inapphcable.*
(3) Just as treaties, through a change of circum-
stances, may become the cause of strife, so may inter-
national conditions in general, unless they are altered
and adapted to new requirements. For this reason
Article 19 stipulates that the Assembly may also from
time to time advise the consideration, by the members
of the League, of international conditions whose con-
tinuance might endanger the peace of the world.
§ 167p. As, in consequence of the World War, Germany
lost her colonies, and Turkey a large part of her Empire,
• See below, § 539. » See below, § 167».
288 THE LEAGUE OF NATIONS
Guardian- a number of territories ceased to be under the sovereignty
oeitain^"^ of the States to which they formerly belonged ; but the
Peoples, pgopjgg inhabiting them were not yet able to stand
alone. For such territories Article 22 of the Covenant
introduces a new principle of International Law, for it
stipulates that they shall be put under the guardianship
of the League of Nations. However, the League is not
itself to administer them, but is to give a mandate to
such member-States of the League as ' by reason of
their resources, their experience, or their geographical
position ' are best fitted to do so. The degree of
authority, control, or administration to be exercised by
the Mandatory State, if not previously agreed upon, is
in each case to be explicitly defined by the Council in
a special act or charter.^
Inter- § l&Iq. Articles 23-25 set the League a nmnber of
cio*op"era- tasks, all involving international co-operation regarding
tion- matters of common interest in time of peace.
According to Article 23(a), the members of the League
will endeavour to secure everywhere fair and humane
conditions of labour for men, women, and children. To
• Article 22, having regard to the aeoond or third tj^pe have been allo-
varying stages of development among oated to Great Britjiin for Palestine ;
different peoples, provides for three to Great Britain and Belgium for
types of mandate. The first is German East Africa ; to South
applicable to certain communities, Africa for German South -West
formerly part of Turkey, which can Africa ; to the British Empire for
be provisionally recognised as inde- Nauru ; to New Zealand for Samoa ;
pendent nations subject to adminis- to Australia for other German
trative advice and assistance from a possessions in the Pacific south of
Mandatory State. Mandates of this the Equator ; to Japan for those
type are likely to be given to Great north of the Equator ; and to Great
Britain for Mesopotamia, to France Britain and France for Togoland
for Syria, and to some other State and the Cameroons. But the terms
for Armenia. The second type is of the mandates have not been pub-
adapted to those peoples which are lished, and this list is given with all
at such a stage that the Mandatory reserve.
State must be responsible for the The Mandatory Commission — Bee
administration of their territory. above, § 167A — is to receive and
The third type is to be applied to examine the annual reports which
territories which can best be adminis- must be made by Mandatory States,
tered a» integral portions of the and to adviso the Council upon en-
Mandatory State. suring the observance of the terms
It appears from answers given in of all mandates.
Parliament that mandates of the
THE FUNCTION OF THE LEAGUE 289
fulfil this task the Peace Conference at Paris produced
a Labour Convention, which is embodied in the Treaties
of Peace ^ and establishes a Gt«ieral Labour Con-
ference, and an Litemational Labour Office, at the seat
of the League of Nations, as part of the organisation
of the League.
According to Article 23(6), the members of the League
undertake to secure just treatment of the native in-
habitants of their territories. Provisions for this
purpose are contained in the convention revising the
General Acts of Berlin of 1885, and of Brussels of 1890,
signed at St. Germain on September 10, 1919.^
According to Article 23(c), the League is entrusted
with the general supervision over the execution of
agreements with r^^xl to the traffic in women and
childr^i, and the traffic in opium and other dangerous
drugs. Already before the World War there were in
existence two treaties ' for the suppression of the so-
caUed White Slave traffic, which are still in force, and
a treaty * concerning the traffic in Opium, which is
brought into force with additional parties by the
Treaties of Peace. The convention for the control
of the Liquor traffic in Africa, signed at St. Germain
on September 10, 1919, prohibits beverages containing
chemical products recognised as injurious to health.^
According to Article 23(«i), the League is entrusted
with the supervision of the trade in arms and ammuni-
tion with those countries in which the control of this
traffic is in the common interest. A convention con-
trolling such trade in the greater part of Africa, part of
Asia, and a maritime zone, including the Persian GuU ,
was signed at St. Germain on September 10, 1919.*
' See above, § 167A, and below, * See below, § 591o.
^^PniL.^ Q_ /,nin» w lo * Treaty Ser. (1919), No. 19,
Treaty Ser. (1919), No. 18, q^ ^-g' g^ . j* ."g^
Cind.477. See below, S 564, 566. «^™»- *'»■ See t)elow, § 5«>.
» See below, § 592. • See below, § 568c
VOL. I. T
290 THE LEAGUE OP NATIONS
According to Article 23(e), tlie League will make pro-
vision to secure and maintain, freedom of communica-
tions and of transit and equitable treatment for the
commerce of all member-States of the League. Pro-
visions of this kind are to be found in the several
Treaties of Peace, and the treaties with the smaller
AlUed States,^ in which general conventions dealing
with these questions are foreshadowed.
According to Article 23(f), the League will endeavour
to take steps in matters of international concern for
the prevention and control of disease. In this connec-
tion must likewise be mentioned Article 25 of the Cove-
nant, according to which ' the members of the League
agree to encourage and promote the establishment
and co-operation of duly authorised voluntary national
Ked Cross organisations having as purposes the im-
provement of health, the prevention of disease, and
the mitigation of suffering throughout the world.'
According to Article 24, ' there shall be placed under
the direction of the League all international bureaux,
already estabhshed by general treaties if the parties
to such treaties consent. AU such international bureaux
a,nd all commissions for the regulation of matters of
international interest hereafter constituted shall be
placed under the direction of the League. In all matters
of international interest which are regulated by general
conventions, but which are not placed under the control
of international bureaux or commissions, the Secretariat
of the League shall, subject to the consent of the Council,
and if desired by the parties, collect and distribute all
relevant information, and shall render any other assist-
ance which may be necessary or desirable. The Council
may include as part of the expenses of the Secretariat
the expenses of any bureau or commission which is
placed under the direction of the League.' ^
' See below, §§ 568d-568A. " See below, §§ 458-47Ie.
DEFECTS AND MEEITS OE CONSTITUTION OF LEAGUE 291
It is to be noted that, while the League will devote
itseK to the fulfilment of the six tasks enumerated in
Article 23, no member of the League is bound by it
unless such member is already a party to, or accedes to,
a previous convention, or becomes a party to a future
convention dealing with these matters. This becomes
quite apparent from the first few hnes of Article 23 :
' subject to and in accordance wiA the provisions of
international conventions existing or hereafter to be
agreed upon.'
IV
DEFECTS AND MERITS OF THE CONSTITUTION OP
THE LEAGUE
§ 167r. From the very beginning of the movement in Objeo-
favour of the League of Nations there were many who g°"erai to
objected to it on principle, whether because they thought ^j.^*^?"'
the League inconsistent with the sovereignty of the of the
several States, or because they considered it a Utopian ^*'^*"
plan. Now that the League has come into existence,
it is superfluous to discuss the objections of those who
opposed it on principle. There are, however, many who,
although they always were, and still are, in favour of a
League of Nations, object to the present League and
its constitution for a number of reasons :
(1) Some argue that the League is not a league of all
itj5i^tEfliaed States, but only of the belligerents victorious
in the World War, and open to objection on that ground.
It is certainly true that the establishment of the League
is not the result of free discussion and deHberation on
the part of aU the civilised States. Without doubt, the
League was evolved and conceived by the victorious
belligerents of the World War only. The Covenant
292 THE LEAGUE OP NATIONS
of the League is the result of the discussion and de-
liberation of a committee appointed by the Allied and
Associated Powers assembled at the Peace XUonference
at Paris, upon which only fourteen of these Powers
were represented. And although after the first draft
had been adopted by the Conference, the committee in-
formally interviewed representatives of thirteen neutral
Powers, and some amendments were made in conse-
quence, the final text of the Covenant is essentially the
product of the Allied and Associated Powers assembled
at the Peace Conference. Moreover, the League was
called into existence by the various Treaties of Peace
imposed on the Central Powers, of which the Covenant
forms the first part ; and the recognition of the
League of Nations was therefore made obligatory
upon the Central Powers. The fact that the con-
stitution of the League is intentionally represented
as the work of the Peace Conference- of the ADied
and Associated Powers becomes further apparent from
the text of Article 4 of the Covenant, according to which
the Council shall consist of representatives of the
Principal Allied and Associated Powers, together with
representatives of four other Powers. But whQe the
League was certainly called into existence by the
Alhed and Associated Powers alone, and other States
had no decisive voice in the drafting of the Covenant,
thirteen neutral States have joined the League as
original members. Further, although the recognition
of the League was imposed upon the Central Powers
without their being admitted as members, the door
has been left open for them, and they will no doubt
become members in due time. The League already com-
prises forty-four members, and the remaining civilised
States may be expected to become members. And
while admittedly some of the defects of the constitu-
tion of the League are due to the way in which it was
DEFECTS AND MERITS OP CONSTITUTION OF LEAGUE 293
conceived and established, Article 26 of the Covenant
provides an opportunity for remedying those defects
by alterations which will doubtless be effected in the
course of time.
Be that as it may, the fact that the League was
estabhshed at the same tim'e as the conclusion of peace
with Germany has enabled it at once to undertake
a number of functions in connection with the execution
of the Peace Treaties, and other treaties constituting
the resettkment after the World War.
To give only a few instances : The League has under-
taken the government of the Saar Basjn for fifteen
years ; it has undertaken the protectorate over the Free
City of Danzig ; and it has imdertaken to guarantee to
German as well as Jewish subjects of Poland, and to the
minorities in other smaller States, protection for their
hves and hberty, and freedom in the exercise of their
rehgion and the use of their language.^
(2) Another objection raised against the constitution
of the League is that it is a league of the Great Powers
only. This objection is based on the fact that the
Council is to comprise nine members, five of whom are
always to be representatives of the Great Powers,
namely, the British Empire, [the United States of
America|,2 France, Italy, and Japan, leaving only four
members to represent aU the other Powers. The predomi-
nance of the Great Powers within the Council is thereby
secured ; and it is to this that objection is made. Yet
it is unjustified. Since the Great Powers are the leaders
within the Family of Nations, and since, whenever the
League is called upon to act against a recalcitrant
member, the Great Powers are chiefly concerned on
accoimt of the fact that they possess the biggest armies
and navies, it is only right and equitable that they
should always be represented, and should be pre-
1 See below, §§ 568e-568A. ^ See above, 1676, n.
294 THE LEAGUE OF NATIONS
dominant, in the Council. But although the Great
Powers are predominant, it will be impossible for them
to abuse their position, because the Council as a rule
can only act if it is unanimous, with the consequence
that the representatives of the four minor Powers in
the Council are as a rule able to prevent action on the
part of the Council. Nor does the permanent repre-
sentation of the Great Powers in the Council violate the
legal equality of all States. It is acknowledged that
the Great Powers are politically superior to the minor
Powers, and it is on this account that the Great Powers
are predominant in the Council.
(3) A third objection put forward against the consti-
tution of the League is that it does not render it a
super-State with a Government and Parliament of its
own, and an international Army and Navy to serve as a
police force. Indeed, there is no trace of a super-State
in the League, for not even the most vivid imagiaation
could see in the Council of the League an international
Government, or in the Assembly an international Parha-
ment with power to legislate by a majority ; and there
is no provision in the Covenant for an international
Army and Navy. However, it may safely be asserted
that, whatever may be the merits of a League creating
a super-State — (the author considers it to be a Utopia)
— not a single civihsed State would at the present time
have given its consent to the establishment of a League
of Nations involving a super-State.
(4) A fourth objection has been made, namely, that
the League is a league of Governments, and not of
peoples, and is therefore not democratic. This objec-
tion is based on the fact that the Assembly of the
League consists of representatives who will no doubt
be deputed by the Governments of the member-States,
and that each member, though it may depute three
representatives, has only one vote. However, the
DEFECTS AND MEBITS OP CONSTITUTION Of LEAGUE 295
delegates of Governments are necessarily also delegates
of peoples, because autocracy has almost everywhere
disappeared, and constitutional democratic govern-
ment has taken its place. So the Government of almost
every member-State of the League is really representa-
tive of the people, being either parhamentary party
government or — as in the United States of America —
a Government directly elected by the people. More-
over, Article 3 of the Covenant does not lay down how
the several members shall select their respective repre-
sentatives ; they might, for instance, be selected by
Parhament or even directly by the people.
(5) Lastly, it has been objected that the constitu-
tion of the League is obviously not strong enough to
secure peace, because otherwise neither would Article
10 of the Covenant stipulate that the members of the
League guarantee to one another their territorial in-
tegrity and existing pohtical independence, nor would
defensive aUiances and separate treaties of guarantee
be admissible within the League, as they are without
doubt according to Article 21. This objection is based
on the wrong presumption that the League was in-
tended to be something Uke a super-State which could
with absolute certainty secure the maintenance of
peace. It overlooks the fact that the League is nothing
else but the organised Family of Nations, and that the
protection which the League can afford to its members
depends in every case entirely upon the readiness of the
members to fulfil their obhgation under the Covenant
not to resort to war without having referred a dispute
either to arbitration or to the Coimcil for inquiry. Of
course, it is possible that a member might not do so,
but might make a sudden attack upon another member.
Then the attacked State would in the first iastance have
to rely upon its own forces, because the League could
only after the lapse of time send forces to its assistance.
^ fBE lEAGUE OF JfATtONS
It is for this reason that the members of the Leagne
guarantee to one another, according to Article 10 of
the Covenant, their territorial integrity and existing
political independence against external aggression, a
gnarantee which is all the more necessary since members
are to reduce their national armaments to the lowest
point consistent with national safety.^ Every member
is to be assured that since it is to reduce its armaments,
the other members will come to its assistance in case of
aggression.
Now it may happ^i that a member is not satisfied
with this general assurance of assistance against
aggression, and would like to secure more speedy hdp
in case of need. In such case there is nothing to pie-
vent it either entering into a defensive alliance witii
one or more other members, or securing the special pro-
tection of one or more members by a special gnarantee
of its independence or territorial int^riiy. Such
defensive alliances and gnarantee treaties would, Uke
all otlier treaties, have to be roistered witili the Secre-
tariat and published, according to Article 18, and for
this reason they would not vitiate the Covenant, but
would confirm and snpplranent it with regard to the
particular cases concerned. Thus, upon the signatnie of
the Treaty of Peace with Germany, France was at once
desirous of securing the speedy assistance of Great
Britain, as well as of the United States, in case tiie stipu-
lations of the treaty concerning the left bank of the Rhine
should be violated by Gtermany, and therefore entered
into two special treaties of alhance with Great Britain
and the United States respectively, by which these
Powers agreed to come immediately to the assistance
of France, in the event of any unprovoked movement
of agression by Germany. *
' See above, f 167m.
' As to tlie poation of Uiese treaties, see tieknr, { 5SSb.
DEFECTS AND MEBITS OF OONSTITDTION OF LEAGUE 297
§ 167s. While the forgoing objections in general to Defects
the constitution of the League are unfounded, there is consti-
no doubt that there are a number of real defects. ^^°
(1) The first defect is that the membership of thei«agne.
League is notifiable (Article 1, paragraph 3), and that
a member may be expelled (Article 16, paragraph 4),
or may cease to be a member through signifying its
dissent from an amendment ratified in accordance with
Article 26. Since the League is intended to be aH-
embradng, and to represent the oi^anised Family of
Nations, there ought to be no possibility for a member
to leave the League, or to be expelled therefrom. A
recalcitrant member should, if necessary, be coerced by
force to submit to the decisions of the League, and to
fulfil its duties. However, it may be hoped that the
stipulations concerning the withdrawal and the emul-
sion of members will disappear in consequence of a
future recasting of the constitntion.
(2) Another defect is that there is no provision for a
separate and individual Council of Conciliation. Accord-
ing to Articles 12 and 15, it is to the Council that dis-
put«s are to be referred for inquiry, and it is this Council
which win investigate the dispute, and make recom-
mendations for its settlement. Yet the Council is, and
must be, a pohtical institution in which, according to
Article 4, the Great Powers have a political preponder-
ance ; and so the political interests of the Great Powers
must influence the Council in their recommendations.
There is great danger that in a dispute between a Great
Power and a minor Power, or even in a dispute between
two minor Powers, the Council will be prejudiced.
Apart from this, paragraph 9 of Article 15, according
to which the Coundl may refer a dispute to the Assembly,
and shall do so at the request of either party to the
dispute, is quite unworkable. The Assembly wiU be
a very laige body, and it will hardly ever be possible
298
THE LEAGUE OF NATIONS
to obtain a unanimous report from it ; yet since such
a report is not a matter of procedure, concerning which,
according to Article 5, a decision may be given by a
majority vote, unanimity will be required. For this
reason, to withdraw a dispute from the Council and
transfer it to the Assembly is to appeal from a more
competent to a much less competent body. What is
urgently needed is the estabhshment of a Council of
ConciUation, as independent of the CouncU of the
League as the International Court of Justice. The func-
tions of the Council of the League ought to be exclusively
political, and confined to the consideration of mere
executive measures. On the other hand, the functions
of a Council of Concihation would consist in an impartial
inquiry into the cause and elements of a dispute, and
in recommendations for its settlement. It is only
if the parties were not inclined to carry out their
recommendations that appeal should be made to the
Executive Council of the League. The British official
commentary on the Covenant points out^ that there
is nothing to prevent the Council from setting up
a permanent Council of ConciUation. This is no
doubt true ; but Article 15, as it stands, contemplates
the settlement of disputes by the Executive Council of
the League, and not by an independent Council of
Conciliation.
(3) The third defect is the absence of a stipulation in
the Covenant, according to which liie settlement of
judicial disputes by an International Court of Justice
is made compulsory, in case the parties do not succeed
in settUng them by other means. Indeed, Article 14 fore-
shadows the estabhshment of an International Court of
Justice, and paragraph 2 of Article 13 names a few
kinds of disputes as ' generally suitable for submission
to arbitration,' but there is no compulsion on the
» Miao., No. 3 (1919), Cmd. 151, p. 16.
DEFECTS AND MEEITS OF CONSTITUTION OF LEAGUE 299
parties to submit even these disputes to the Inter-
national Court of Justice.^
(4) A fourth defect is that, according to Article 19
of the Covenant, ' the Assembly may from time to
time advise the reconsideration by members of the
League of treaties which have become inapplicable, and
the consideration of international conditions whose
continuance might endanger the peace of the world/ ^
There would not be much objection to this if unanimity
were not required. But as the Assembly will consist of
representatives of more than forty States, and only by a
unanimous vote of these forty or fifty States can it advise
the reconsideration of treaties and the consideration of
international conditions, it would seem that, being such a
large poUtical body, it is hardly fit for the task, and it
would have been preferable to have entrusted it to the
Coimcil, which is a much smaller body, if the principle
of unanimity is to be maintained. It would be still
better if every member-State were given the right to call
upon the International Court of Justice to investigate
the matter, and give an opinion as to whether, in con-
sequence of a vital change of circumstances and con-
ditions, a certain treaty had become inappHcable, or
whether the continuance of certain international con-
ditions endangered the peace of the world. Both the
Assembly and the Council are political institutions,
and on that account less fit to advise on such questions
than the International Court of Justice, which would
approach tl^e matter without any political bias.
(5) A last defect is the absence of a stipulation in
the Covenant making it the duty of the Council to
intervene if a belligerent violated fundamental rules of
warfare. The rules of liiternational Law regarding
' See below, § 4766. Certain ques- of Peace, and other treaties oon-
tions are, however, expressly re- eluded during the Peace Conference,
ferred to the Court by the Treaties ' See above, § 167o (2) ai^ (3).
300
THE LEAGUE OF NATIONS
warfare do not concern the belligerents alone, but the
Family of Nations as a body. At present the only
remedies for their violation are reprisals and the
punishment of war crimes ; not only are these remedies
insufficient, but they frequently lead to further violations
and abuses. Only by making it the duty of the League
to intervene, and Hkewise to undertake the pimishment
of war crimes, could the strict observance of the rules
of warfare on the part of both belligerents be secured.
Marits of § 167t. Whatever may be the defects of the constitu-
stitiSion *^o^ of ^^^ League, its establishment has inaugurated a
of the new epoch in the development of mankind, by organising
the Family of Nations. The Assembly, comprising re-
presentatives of all the member-States, and meeting at
stated intervals, is an organ of the Family of Nations
through which the civilised States can give their consent
to all treaties which may be necessary to secure joint
international action, and, more quickly and more effec-
tively than in former times, can amend and even codify
the hitherto customary Law of Nations. The Council
is a kind of executive of the Family of Nations which,
although its decisions are in the main only recommenda-
tions, will exercise an important influence and authority.
In the Permanent Secretariat, a kind of International
Civil Service has been called into existence, the import-
ance of which will become more and more apparent as
the League carries out its tasks. Through the adoption
of the principle that the parties to a dispute must not
resort to war without having previously submitted it
either to arbitration or to inquiry by the Council, war
should occur less frequently than in former times, and
should not break out suddenly Hke a bolt from the blue.
By securing the reduction of national armaments to the
lowest possible point, the League should not only
diminish the danger of war, but should free the world
from an oppressive economic burden. By the acceptance
DEFECTS AND MERITS OP CONSTITUTION OF LEAGUE 301
of the priBciple of open diplomacy, the relations of
civilised States should be reheved from suspicion and
mistrust. Through the adoption of the principle that
treaties which have become inapplicable should be
reconsidered, the danger of the abuse of the notoriou's
clause omnis conventio intelligitur rebus sic stantibus
should be reduced. The principle of guardianship over
certain undeveloped peoples is a new and progressive
step in International Law. By setting itself a number
of tasks of international co-operation regarding matters
of common interest, the League has opened a wide pros-
pect of development for International Law.
Moreover, it is a merit of the constitution that it is
not rigid. The establishment of the League is an un-
precedented venture, and the absence of rigidity in the
constitution permits adaptation to future circumstances,
conditions, and requirements which could not be fore-
seen when it was drawn up. Serious defects are to be
found in the constitution as at present framed ; but
Article 26 provides for the possibihty of amendments.
It must not be forgotten that the Covenant is a com-
promise between very divergent views held by the
several Powers, and those who know the difficulty of
bringing about such a compromise must be ready to
accept it for the time being as the best thing obtainable
under the prevailing circumstances and conditions.
Whatever may be its defects, the League is enabled
to embark upon most important activities, and its
success will depend much less upon the constitutional
machinery provided by the Covenant than upon the
spirit with which the members of the League use it.
Ultimately the success of the League depends upon the
goodwill of the majority of its members, and especially
of the Great Powers.
PART II
THE OBJECTS OF THE LAW OF
NATIONS
CHAPTER I
STATE TERRITORY
I
ON STATE TERRITORY IN GENERAL
Vattel, ii. §§ 79-83— Hall, § 30— Westlake, i. pp. 86-90— Lawrence, §§ 71-73
— Phillimore, i. §§ 150-154— Twiss, i. §§ 140-144— Halleok, i. pp. 156-
163— Taylor, § 217— Wheaton, §§ 161-163— Moore, i. § 125— Hershey,
No9. 159-160— BliintBohli, § 277— Hartmann, § 58— Holtzendorff in
Holtzendorff, ii. pp. 225-232— Gareis, § 18— Liszt, § 9— Ullmann,- § 86—
Heflfter, §§ 65-68— Bonfils, Nos. 483-485— Despagnet, Nos. 374-377—
Pradier-Fod6r^, ii. No. 612— M^rignhao, ii. pp. 356-366— Nys, i. pp.
436-445— Rivier, i. pp. 135-142— Calvo, i. §§ 260-262— Fiore, i. Nos. 522-
530 — Martens, i. § 88 — Del Bon, Propriety terriioriale degli Stati (1867)
— Frioker, Vom Staatagehiet (1867) — Ghirardini, La Sovranitd, terri-
ioriale net Diritto internazionaie (1913).
§ 168. State territory is that definite portion of the Conoep-
surface of the globe which is subjected to the sove- g^e*
reignty of the State. A State without a territory is Territory.
not possible, although the necessary territory may be
very small, as in the case of the Free City of Danzig,
the Principality of Monaco, the Repubhc of San
Marino, or the PrincipaHty of Lichtenstein. A wander-
ing tribe, although it has a Government and is other-
wise organised, is not a State before it has settled down
on a territory of its own.
State territory is also named territorial property of
a State. Yet it must be borne in mind that territorial
property is a term of PubUc Law, and must not be con-
founded with private property. The territory of a
VOL. I. U 'OS
306
STATE TERRITORY
State is not the property of the monarch, or of the
Government, or even of the people of a State ; it is
the country which is subjected to the territorial supre-
macy or the im/perium of a State, This distinction has,
however, in former centuries not been sharply drawn.^
In spite of the dictum of Seneca, ' Omnia rex imperio
possidet, singuh dominio,' the vmferium of the monarch
and the State over the State territory has very often
been identified with private property of the monarch
or the State. But with the disappearance of absolut-
ism this identification has Ukewise disappeared. It
is for this reason that nowadays, according to the Con-
stitutional Law of most countries, neither the monarch
nor the Government is able to dispose of parts of the
State territory at will without the consent of Parha-
ment.^
It must, further, be emphasised that the territory
of a State is totally independent of the racial character
of the inhabitants of the State. The territory is the
public property of the State, and not of a nation in the
sense of a race. The State community may consist of
difierent nations, as, for instance, the British or the
Swiss.
Different § 169. The territory of a State may consist of one
Territory, piecc of the surface of the globe only, such as that of
Switzerland. Such kind of territory is named ' inte-
grate territory ' [temtarium dausum). But the terri-
tory of a State may also be dismembered and consist
of two or more pieces, such as that of Great Britain or
Germany. All States with colonies have a ' dismem-
bered territory.'
If a territory or a piece of it is absolutely surrounded
' And some writers refuse to draw this point is not settled. The ces-
it even nowadays, as, for instanoe, sion of the island of Heligoland to
Lawrence, § 71. Germany in 1890 was, however, made
conditional on the approval of Par-
^ In English Constitutional Law liament.
ON STATE TEREITOEY IN GENERAL 307
by the territory of another State, it is named an
' enclosure.' Thus the Repubhc of San Marino is an
enclosure of Italy, and Lhvia, a small Spanish area
in the midst of the French Department of P3n:enees-
Orientales, is an enclosure of France.
Colonies as a rule rank as territory of the motherland ;
but dominions enjoying complete self-government, as
for instance the Dominion of Canada, Newfoundland,
the Commonwealth of Austraha, New Zealand, and the
Union of South Airica, though they form part of
the territory of the British Empire, occupy a special
position.^
As regards the relation between the suzerain and
the vassal State, it is certain that the vassal is not, in
the strict sense of the term, a part of the territory of
the suzerain. But no general rule can be laid down, as
everything depends on the merits of the special case,
and as the vassal, even if it has some footing of its own
within the Family of Nations, is internationally for the
most part considered a mere portion of the suzerain
State.2
§ 170. The importance of State territory lies in the import-
fact that it is the space within which the State exercises state°
its supreme authority. State territory is an object of territory.
the Law of Nations, because the latter recognises the
supreme authority of every State within its territory.
Whatever person or thing is on, or enters into, that
territory, is if so facto subjected to the supreme
authority of the State according to the old rules, Quid-
qiMd est in territono, est etiam de territorio and Qui in
terriiorio meo est, etiam mens svbditus est. No foreign
authority has any power within the boundaries of the
home territory, although foreign sovereigns and diplo-
matic envoys enjoy the so-called privilege of exterri-
toriahty, and although the Law of Nations does, and
* See above, §§ 940 and 946. » See above, § 91,
308 STATE TEREITOEY
international treaties may, restrict ^ the home authority
in many points in the exercise of its sovereignty.
OneTerri- § 171. The Supreme authority which a State exer-
Stete.°"^ cises over its territory makes it apparent that on one
and the same territory can exist one fuU sovereign
State only. Two or more full sovereign States on one
and the same territory are an impossibility. The
following five cases, of which the Law of Nations is cog-
nisant, are apparent, but not real, exceptions to this rule.
(1) There is, first, the case of the so-called con-
dominium. It happens sometimes that a piece of terri-
tory consisting of land or water is under the joint
tenancy of two or more States, these several States
exercising sovereignty conjointly over it, and the
individuals hving thereon. Thus Schleswig-Holstein
and Lauenburg from 1864 till 1866 were under the
condominium of Austria and Prussia. Thus, further,
Moresnet (Kehnis), on the frontier of Belgium and
Germany, was formerly under the condominium oi these
two States ^ because they could not come to an agree-
ment regarding the interpretation of a boundary treaty
of 1815 between the Netherlands and Prussia ; but by
the Treaty of Peace with Germany, Germany has recog-
nised the full sovereignty of Belgium over this territory.
Moreover, since 1898 the Soudan has been under the con-
dominium of Great Britain and Egypt. ^ It is easy to
show that in such cases * there are not two States on one
and the same territory, but pieces of territory, the destiny
' See above, §§ 126-128. * The New Hebrides are materi-
^ See Schroder, Das grenzstreitige ally likewise under «■ condominium,
Gebiet von Moresnet (1902) ; and for namely, that of Great Britain and
the present position of Moresnet, France, although Article 1 of the
the Treaty of Peace with Germany, Convention of October 20, 1906 —
Article 32, and below, § 568e. see Martens, N'.R.G., 3rd Ser. i.
' See Sarkissian, Le Soudan dgyp- p. 523 — speaks only of ' a region
«ten (1913). See also the agreement of joint influence' with regard to
between Great Britain and Egypt of the New Hebrides. See Brunet, Le
January 19, 1899, signed at Cairo, Rigim^ international del NouveUet-
in Martens, JV.R.G., 3rd Ser. iv. ^eVtcfe* (1908), and Politis in £.(?.,
p. 791. xiv. (1907), pp. 689-759.
ON STATE TERRITORY IN GENERAL 309
of which is not decided, and which are kept separate
from the territories of the interested States ^ under a
separate admioistration. Until a final settlement, the
interested States do not each exercise an individual
sovereignty over these pieces, but they agree upon a
joint administration under their conjoint sovereignty.
(2) The second case is that of the administration of
a piece of territory by a foreign Power, with the consent
of the owner-State. Thus, from 1878 to 1914 the
Turkish island of Cyprus was under British admini-
stration ; ^ and the Turkish provinces of Bosnia and
Herzegovina were from 1878 to 1908 under the admini-
stration of Austria-Hungary.^ In these cases a cession
of pieces of territory had for all practical purposes taken
place, although in law they still belonged to the former
owner-State. Anyhow, it is certain that only one
sovereignty was exercised over these pieces — namely,
the sovereignty of the State which exercised admini-
stration.
(3) The third case is that of a piece of territory
leased or. pledged by the owner-State to a foreign Power.
Thus, China in 1898 leased * the district of Kiaochau to
Germany, Wei-Hai-Wei and the land opposite the island
of Hong-Kong to Great Britain, and Port Arthur to
Kussia.^ Thus, further, in 1803 Sweden pledged the
town of Wismar ® to the Grand Duchy of Mecklenburg-
^ Existing and former examples of under this lease in favour of Japan.
condominium are discussed by TuUio, See below, § 568c.
II Condominium nel Diritto pubUico ' Russia in 1905, by the Peace
intemazionale (1910). Treaty of Portsmouth, transferred
' On the annexation of Cyprus, her lease to Japan,
see S.G., xxi. (1914), pp. 510-512. This transaction took place for
a mi. m 1 • ,. ■ 1 J j: A J 17 1/ ^'^^ ™™ °* 1,250,000 thaler, on oon-
. "The Turkish island of Ada-Kal6, ^itj^^ ^^3,4 Sweden, after the lapse
in the nver Danube was under the ^f joq should be entitled to
admimstration of Austria-Hungary ^ake baek the town of Wismar on
from 1878 to 1913. See Blooiszewski repayment of the money, with 5 per
in S.G., XXI. (19U), pp. 379-390. ^^^t. interest per annum. Sweden
' See below, §216. By Article 156 in 1903— see Martens, N.B.O., 2nd
of the Treaty of Peace with Germany, Ser. xxxi. pp. 572 and 574 — formally
Germany renounced all her rights waived her right to retake the town,
310 STATE TERRITORY
Schwerin, and the Republic of Genoa in 1768 pledged
the island of Corsica to France. All ^ such cases com-
prise, for all practical purposes, cessions of pieces of
territory, but in strict law they remain the property of
the leasing State. And such property is not a mere
fiction, as some writers ^ maintain, for it is possible for
the lease to come to an end by expiration of time or by
rescission. Thus the lease, granted in 1894 by Great
Britain to the former Congo Free State, of the so-called
Lado Enclave, was rescinded ^ in 1906. Or again the
leases of the German concessions at B[ankow and Tien-
tsin, and the Austro-Hungarian concession at Tientsin,
were abrogated by Article 132 of the Treaty of Peace
with Germany and Article 116 of the Treaty of
Peace with Austria, and the areas were restored
to the full sovereignty of China. However this may
be, as long as the lease has not expired it is the
lease-holder who exercises sovereignty over the
territory concerned.
(4) The fourth case is that of a piece of territory of
which the use, occupation, and control are irl perpetuity
granted by the owner-State to another State, to the
exclusion of the exercise of any sovereign rights over
the territory concerned on the part of the grantor. In
this way * the Repubhc of Panama transferred, in 1903,
to the United States of America a ten-mile wide strip
of territory for the purpose of constructing, adminis-
tering, and defending the so-called Panama Canal. In
this case the grantor retains only in name the property
in the territory, the transfer of the land concerned is
^ Different are leases of land by ^ See, for instance, Perrinjaquet
one State to another for certain in -B.C?., xvi. (1909), pp. 349-367.
purposes. See, for instance, the
two agreements between Great " By Article 1 of the Treaty of
Britain and France of May 20, London of May 9, 1906 ; see Martens,
1903. Martens, W.R.O., 3rd Ser. iV^.Je.e., 2ndSer. xxxv. p. 454.
V. (1912), pp. 760 and 762. See
also Sohoenbornin.Z. F., vii. (1913), * See below, § 184, and Boyd in
pp. 438-445. B.O., xvii. (1910), pp. 614-624,
THE DIFFERENT PARTS OF STATE TERRITORY 311
really cession all but in name, and it is certain that
only the grantee exercises sovereignty there.
(5) The fifth case is that of the territory of a Federal
State. As a Federal State is considered ^ itself a
State side by side with its single member-States, the
fact is apparent that the different territories of the
single member-States are at the same time collectively
the territory of the Federal State. But this fact is
only the consequence of the other Ulogical fact that
sovereignty is divided between a Federal State and its
member-States. Two different sovereignties are here
by no means exercised over one and the same territory,
for so far as the Federal State possesses sovereignty
the member-States do not, and vice versa.
II
THE DIFFERENT PARTS OP STATE TERRITORY
§ 172. To the territory of a State belong not only Real and
the land within the State boundaries, but also the so- f^^^^
called territorial waters. They consist of the rivers, Territory,
canals, and lakes which water the land, and, in the case
of a State with a sea-coast, of the maritime belt and
certain guKs, bays, and straits of the sea. These different
kinds of territorial waters will be separately discussed
below in §§ 176-197. In contradistinction to these real
parts of State territory there are some things that are
either in every respect or for some purposes treated as
though they were territorial parts of a State. They are
fictional and in a sense only parts of the territory. Thus
men-of-war and other pubhc vessels on the high seas
as well as in foreign territorial waters are essentially in
every point treated as though they were floating parts
' See above, § 89.
312
STATE TEERITORY
of their home State,^ And the houses in which foreign
diplomatic envoys have their official residence are ia
many points treated as though they were parts of the
home States of the respective envoys.^ Again., mer-
chantmen on the high seas are for some poiats treated
as though they were floating parts of the territory of
the State imder whose flag they legitimately sail.^
Terri- § 173. The subsoil beneath the territorial land and
soil* " water * is of importance on accoimt of telegraph and
telephone wires and the Uke, and further on account of
the working of mines and of the building of tunnels.
A special part of territory the territorial subsoil is not,
although this is frequently asserted. But it is a uni-
versally recognised rule of the Law of Nations that the
subsoil to an unbounded depth belongs to the State
which owns the territory on the surface.
Terri- § 174. The space of the territorial atmosphere is no
mosphere. more a Special part of territory than the territorial sub-
soil, but it is of the greatest importance on account of
wires for telegraphs; telephones, electric traction, and
the hke, on account of wireless telegraphy, and above
aU, on account of aerial navigation.
(1) Nothing need be said concerning wires for tele-
graphs and the like, except that obviously the territorial
State can prevent neighbouring States from making use
of its territorial atmosphere for such wires.
(2) As regards wireless telegraphy,^ the Inter-
national Radiographic Convention, signed at London
' See below, § 450. recht (1910) ; Thum, Die Fvmken-
^ See below, § 390. telegraphie im Recht (1913) ; Devaux,
' See below, § 264. La TiUgraphie mm Fil (1914) ;
* As regards the subsoil of the Loewengard, Die iniemcUioncde
open sea, see below, §§ 287c and Badiotelegraphie im irUemationalen
287d. Recht (1915); RoUand in iJ. G. , xiii.
» See Meili, Die drahtloae Tele- (1906), pp. 58-92; Fauchille in
graphie,eto.[i^08); 8ohneeli,Draht- Annuaire, xxi. (1906), pp. 76-87;
lose Telegraphie und Volkerrecht Bonfils, Nos. 531" and 531^"
(1908); Landsberg, Die drahtloae Despagnet, No. 433 guater ; Meurer
Telegraphie (1909); Kausen, Die and Boidin in ii.©., xvi. (1909), pp.
drahtloae Telegraphie im Vollcer- 76 and 261.
THE DIFFEEENT PARTS OF STATE TERRITORY 313
on July 5, 1912, represents an agreement ^ of the signa-
tory Powers concerning the exchange of radio-telegrams
on the part of coast stations and ship stations, and one
ship station and another, but it contains no stipulation
respecting the general question whether the territorial
State is compelled to allow the passage over its territory
of waves emanating from a foreign wireless telegraphy
station. There ought to be no doubt that no such com-
pulsion exists according to customary International
Law, and that therefore the territorial State can prevent
the passage of such waves ^ over its territory.
(3) But with regard to aerial navigation the space of
the territorial atmosphere is of particular importance,
and will be considered in §§ 197a-197c.
§ 175. It should be mentioned that not every part inaiiena-
of territory is aKenable by the owner-State. For it is parta of
evident that the territorial waters are as much insepar- Territory.
able appurtenances of the land as are the territorial
subsoil and atmosphere. Only pieces of land together
with the appurtenant territorial waters are aKenable
parts of territory.^ There is, however, one exception
to this, since boundary waters ^ may wholly belong to
one of the riparian States, and may therefore be trans-
ferred through cession from one riparian State to the
other without the bank itself. But it is obvious that this
is only an apparent, not a real, exception to the rule
that territorial waters are inseparable appurtenances
of the land. For boundary waters that are ceded to
the other riparian State remain an appurtenance of
land, although they are now an appurtenance of the
one bank only.
* See below, §§ 2876 and 582. power of the territorial State to
exclude such waves from passing
' The Institute of International over its territory to the case in
Law — see Annuaire, xxi. (1906), p. which the exclusion is necessary in
328 — ^proposes by Article 3 of its the interest of its security.
' Regime des Aerostats et de la ' See below, § 185.
T^l^graphie sans fil' to restrict the * See below, § 199,
314
STATE TERRITORY
III
RIVERS
Grotius, ii. 0. 2, §§ 11-15— Pufendorf, iii. o. 3, § 8— Vattel, ii. §§ 117, 128,
129, 134— Hall, § 39— Westlake, i. pp. 144-163— Lawrence, § 92—
Phillimolre, i. §§ 155-171— Twisa, i. §§ 145-156— Halleok, i. pp. 182-191
—Taylor, §§ 233-241— Walker, § 16— Hershey, Nos. 199-200— Wharton,
i. § 30— Moore, i. §§ 128-132— Wheaton, §§ 192-205— BluntsohU, §§ 314,
315 — Hartmann, § 58 — He£fber, § 77 — Caratheodory in Holtxeiidorff, ii,
pp. 279-377— Gareis, § 20— Liszt, §§ 9 and 27— Ullmami, §§ 87 and 105—
Bonfils, Nos. 520-531 — Despagnet, Nos. 419-421 — M6rignhao, ii. pp.
605-632— Pradier-Foddr6, ii. Nos. 688-755— Nys, i. pp. 457-471, and
ii. pp. 129-163— Rivier, i. p. 142 and § 14— Calvo, i. §§ 302-340— Fiore,
ii. Nos. 755-797, and Code, Nos. 288-290 and 981-987— Martens, i. § 102,
ii. § 57 — Delavaud, Navigaiion . . . sur let Fleuves iniemationaux (1885)
— Bngelhardt, Dii, Bigime conventionnel dea Fleuves intemationaux (1879),
and Hiatoiredu Droit fluvial conventionnel (1889) — Vemesoo, Dei Fleuves
en Droit international (1888) — Orban, Aude tur le Droit fluvial inter-
national (1896) — Berg^s, Du Bigime de Navigation dei Fleuvea inter-
natienaux (1902) — Lopez, Regimen intemacumal de lot Bias navigaiHei
(1905) — Oarlomagno, El Derecho fluvial intemacional (Buenos Ayres,
1913) — Schulthess,Dix»»raierKa«i(MioZe Wauerrecht(\^lS) — Kaeckenbeeok,
Intematimal Rivera (1918)— Huber in Z.V., i. (1906), pp. 29 and 159—
Hyde in A.J., iv. (1910), pp. 145-155— Vallotton in R.I., 2nd Ser. xv.
(1913), pp. 271-306— Bousek in Z.V., vii. (1913), pp. 39-55— Wittmaak
in the Jahrbuch fur Volkerrecht, i. (1913), pp. 481-495 — Lyde in The
Covenant, i. (1920), p. 168.
Rivers § 176. Thcory and practice agree upon tlie rule that
party of °' rivers are part of tlie territory of the riparian State,
st'^t^s'*" Consequently, if a river Hes whoUy, that is, from its
source to its mouth, within the boundaries of one and
the same State, such State owns it exclusively. As
such rivers are under the sway of one State only and
exclusively, they are named ' national rivers.' Thus, all
Enghsh, Scottish, and Irish rivers are national, and so
are, to give some Continental examples, the Seine, Loire,
and Garonne, which are French ; and the Tiber, which
is Itahan. But many rivers do not run through the
land of one and the same State only, whether they are
so-called ' boundary rivers,' that is, rivers which sepa-
rate two different States from each other, or whether
RIVERS 315
they run through several States and are therefore named
* not-national rivers/ Such rivers are not owned by-
one State alone. Boundary rivers belong to the terri-
tory of the States they separate, the boundary hne,^
as a rule, running either through the middle of the river
or through the middle of the so-called mid-chanjael of
the river. Aad_riyers jjphich^run through several States
belong to the territories of the States concerned ; each
State owns that part of the river which runs through its
territory.
There is, however, another group of rivers to be men-
tioned, which comprises all such rivers as are navigable
from the open sea, and at the same time either separate
or pass through several States between their sources
and their mouths. These rivers, too, belong to the
territories of the different States concerned, but they
are nevertheless named ' international rivers,' because
freedom of navigation in time of peace on all such
rivers in Europe and on many of them outside Europe
for merchantmen of all nations is recognised by Inter-
national Law.^
§ 177. There is no rule of the Law of Nations in exist- Naviga-
ence which grants foreign States the right of admit- National,
tance for their pubhc or private vessels to navigation on boundary
i-Tii r •! and not-
national rivers. In the absence oi commercial or National
other treaties granting such a right, every State can^*^®"'
exclude foreign vessels from its national rivers, or admit
them under certain conditions only, such as the pay-
ment of dues and the Uke. The teaching of Grotius
^ See below, § 199 ; Huber in of the waterway or of its principal
Z.V., i. (1906), pp. 29 and 159; and arm, (6) in the case of navigable
Schuithess, op. cit., pp. 8-15. The rivers, the median line of the principal
Treaties of Peaoe with Germany channel.
(Article 30), Austria (Article 30), and 'The distinction made in the
Bulgaria (Article 30) provide that in text between 'national,' 'boundary,'
case of boundaries therein defined by ' not-national,' and ' international '
a waterway, the terms ' course ' and rivers is not made by other writers,
'channel' signify (a) in the case of They class as 'international' all
non-navigable rivers, the median line such rivers as are not national,
316
STATE TEERITORY
(ii. c. 2, §§ 10, 12, and 13) that iimocent passage through
rivers must be granted has not been recognised by the
practice of the States, and Bluntschli's assertion (§ 314)
that such rivers as are navigable from the open sea
must in time of peace be open to vessels of all nations,
is at best an anticipation of a future rule of International
Law ; it does not as yet exists
As regards boundary rivers and not-national rivers
running through several States, the riparian States ^
can regulate navigation on such parts of these rivers
as they own, and they can certainly exclude vessels of
non-riparian States altogether, imless prevented there-
from by virtue of special treaties.
Naviga- § 178. Whercas there is certainly no recognised pria-
inter°" ^^V^^ of free navigation on national, boundary, and
national not-uatioual rivers, a movement for the recognition of
Rivers. . . . . , . .
tree navigation on international rivers set m at the
beginning of the nineteenth century. Until the French
Eevolution towards the end of the eighteenth century,
the riparian States of such rivers as are now called inter-
national rivers could, in the absence of special treaties,
exclude foreign vessels altogether from those parts
which ran through their territory, or admit them under
discretionary conditions. Thus, the river Scheldt was
wholly shut up in favour of the Netherlands according
to Article 14 of the Peace Treaty of Miinster of 1648
between the Netherlands and Spain. The develop-
ment of things in the contrary direction begins with a
decree of the French Convention, dated November 16,
1792, which opens the rivers Scheldt and MeUse to the
vessels of all riparian States. But it was not until
the Vienna Congress ^ in 1815 that the principle of
free navigation on the international rivers of Europe
• See below, § 178a.
^ Articles 108-117 of the Final Act of the Vienna Congress; see Martens,
N.S., ii. p. 427,
RIVERS 317
by merchantmen of not only the riparian but of all
States was proclaimed. The Congress itself gave
theoretical recognition to that principle in making
arrangements ^ for free navigation on the rivers
Scheldt, Meuse, Rhine, and on the navigable tributaries
of the latter — ^namely, the rivers Neckar, Maine, and
Moselle — although more than fifty years elapsed before
it became reahsed in practice, in 1868, and even then
in a somewhat restricted way.^
The next step was taken by the Peace Treaty of
Paris of 1856, which by its Article 15 ^ stipulated free
navigation on the Danube and expressly declared the
principle of the Vienna Congress regarding free naviga-
tion on international rivers for merchantmen of all
nations to be part of ' European PubUc Law.' A special
international organ for the regulation of navigation
on the Danube was created, the so-called European
Danube Commission.
A further development took place at the Congo Con-
ference at Berhn in 1884-1885, since the General Act *
of this Conference proAnded for free navigation on the
rivers Congo and Niger and their tributaries, and the
creation of the so-called ' International Congo Commis-
sion ' as a special international organ for the regulation
of the navigation of the said rivers. But this Com-
mission was never appointed.
The position of international rivers in Europe was
reviewed at the Peace Conference in 1919, and a general
convention is foreshadowed. This convention, which
is to be drawn up by the AlUed and Associated
Powers and approved by the League of Nations, is
' 'R^glements pour la libre Navi- Sturdza, Recueilde Documents rdatif a
gation des Rividres ' ; see Martens, a Id Liberty de Navigation du Danube
N.R., ii. p. 434. (Berlin, 1904). See also Demorgny,
' See the Convention of Mannheim La Question du Danube (1911), and
of Ootoher 17, 1868. Dungern in Z.I., xxvi. (1916), pp.
' See Martens, N. E. G. , xv. p. 776. 510-S62.
The documents ooncerning naviga- * See Martens, N.B.G., 2nd Ser.
tion on the Danube are collected by a. p. 417.
318
STATE TERRITORY
to specify the rivers and waterways to be regarded
as "international/ and is to provide a general regime
applicable to them. Germany, Austria, and Bulgaria
have agreed to accede to it.^ Pending the conclusion of
this general convention, the general provisional regime
laid down in the Treaties of Peace is to be appUed to
rivers declared by them to be ' international ' (other
than the Rhine and the Moselle), subject to certain
special stipulations in the case of particular rivers. ^
Among rivers and waterways so declared ' international '
are parts of the Elbe, Moldau (Ultava), Oder, Niemen,
Danube, Morava (March), Thaya (Theiss), Vistula,
Pruthj and the projected Rhine-Danube waterway.^ On
them the nationals, property, and flags of all Powers
are to be treated on a footing of perfect equaUty.*
Charges may be levied, if not precluded by existing
conventions ; but only such as cover equitably the cost
of maintaining and improving the conditions of naviga-
tion. The general provisions for freedom of transit ^
are apphcable to the transit of vessels, passengers, and
goods on these waterways. If no special organisation
has been set up for the control of the waterway, each
riparian State is bound to remove any obstacle or danger
to navigation, and maintain good conditions of naviga-
tion. No riparian State may undertake works of a
nature to impede navigation except where all the riparian
^ Treaty of Peace with Germany, or to connect two naturally navigable
Article 338 ; Treaty of Peace with sections of the same river.' See
Austria, Article 299 ; Treaty of Peace Treaty of Peace with Germany,
with Bulgaria, Article 227. Article 331 ; Treaty of Peace with
' See, for example, Articles 331- Austria, Article 291 ; Treaty with
353 of the Treaty of Peace with Poland, Article 18 ; Treaty with
Germany. Roumania, Article 16.
' ' And all navigable parts of these * See, for example. Treaty of
river systems which naturally provide Peace with Germany, Article 332.
more than one State with access to But German vessels may not carry
the sea, with or without tranship- passengers or goods by regular
ment from one vessel to another, services between the ports of any
together with lateral canals and Allied or Associated Power without
channels constructed either to dupli- special authority, so long as this
oate or to improve naturally navigable restriction remains in force,
sections of the specified river systems, ' See below, § 568e.
ElVERS 319
States (or the States represented on the special organisa-
tion, if there is one) agree that irrigation, water-power,
or fisheries, or other national interests, should be given
priority over the requirements of navigation.^
The Khine and Moselle are not made subject to the
general provisional regime. The Convention of Mann-
heim of 1868 is to continue for the time,'being to govern
the navigation of the Rhine and Moselle, but subject
to important modifications introduced by the Treaty of
Peace with Germany.^ But the Central Commission set
up by the convention ^ is to draw up and submit to the
Powers now represented upon it a project of revision of
the convention, to which Germany has agreed to accede.
The Peace Conference also dealt with two inter-
national rivers in Africa — the Congo and the Niger.
The General Act of the Berhn Congo Conference of
February 26, 1885, was abrogated by a convention signed
at St. Germain on September 10, 1919 ; * but the old
Article 1, which defined the area within which the trade
of all nations should enjoy complete freedom, has been
re-enacted, and new rules have been laid down, so that
the original or acceding parties to the new convention
should enjoy the full benefit in practice of that fl:eedom
of navigation on the Congo, Niger, and their tributaries
which was declared by the General Act.
Side by side with these general treaties, which recog-
nise free navigation on international rivers in Europe
and Africa, stand treaties ^ of several South American
States with other States concerning free navigation
for merchantmen of all nations on a number of South
American rivers. And the Arbitration Court, sitting in
' See Treaty of Peace with Gar- ' The membership of this Corn-
many, Articles 336-337. Complaints mission has been varied by Article
under these two articles are to be 355.
heard by a tribunal to be instituted * Treaty Ser. No. 18 (1919),
for the purpose by the League of Cmd. 477.
Nations. ' See Taylor, § 238, and Moore, i.
» See Articles 354-362. ' § 131, pp. 639-651.
320
STATE TERRITORY
Paris, in the case of the boundary dispute between
Great Britain and Venezuela, decided in 1899 in favour
of free navigation for merchantmen of all nations on
the rivers Amakourou and Barima.^
Thus the principle of free navigation, which is a
settled fact as regards all European and some African
international rivers, becomes more and more extended
over all other international rivers of the world. But
when several writers maintain that free navigation on
all international rivers of the world is already a recog-
nised rule of the Law of Nations, they are decidedly
wrong, although such a universal rule will certainly be
proclaimed in the future. There can be no doubt that
as regards the South American rivers the principle is
recognised by treaties between a small number of Powers
only. And there are examples which show that the
principle is not yet universally recognised. Thus by
Article 4 of the Treaty of Washington of 1854 between
Great Britain and the United States the former grants
to vessels of the latter free navigation on the river St.
Lawrence as a revocable privilege, and Article 26 of the
Treaty of Washington of 1871 stipulates for vessels of
the United States, but not for vessels of other nations,
free navigation ' for ever ' on the same river.^
However this may be, the principle of free naviga-
tion involves a provision that vessels of all nations must
be admitted without payment of any dues whatever other
than dues levied upon all navigating vessels for expenses
incurred by the riparian States for such improvements
of the navigabiUty of rivers as embankments, break-
waters, and the like, and for maintaining good condi-
tions of navigation.^ This has been expressly recog-
^ Martens, N.R.O., 2nd Ser. xxix. ' As regards the question of levy-
p. 687. ing dues for navigation of the rivers
''See Wharton, i. pp. 81-83; Rhine and Elbe prior to the Treaties
Moore, i. § 131, p. 631 ; and Hall, of Peace of 1919, see Arndt in Z.V.,
§ 39. iv. (1910), pp. 208-229,
EIVEES 321
nised in the general provisional regime adopted by
the Treaties of Peace.
§ 178a. Apart from navigation on rivers, the question utmsa-
of the utilisation of the flow of rivers is of importance.^ Flow of ^
With regard to national rivers, the question cannot ^'^^'■^■
indeed be raised, since the local State is absolutely un-
hindered in the utiUsation of the flow. But the flow
of not-national, boundary, and international rivers is
not within the arbitrary power of one of the riparian
States, for it is a rule of International Law^ that no
State is allowed to alter the natural conditions of its
own territory to the disadvantage of the natural con-
ditions of the territory of a neighbouring State, For
this reason a State is not only forbidden to stop or to
divert the flow of a river which runs from its own to a
neighbouring State, but likewise to make such use of
the water of the river as either causes danger to the
neighbouring State or prevents it from making proper
use ^ of the flow of the river on its part. Since, apart
from special treaties between neighbouring countries
concerning special cases, there are neither customary
nor conventional detailed rules of International Law
concerning this subject, the Institute of International
Law, at its meeting at Madrid* in 1911, adopted a
' Rfeglementation international des Cours d'eau inter-
nationaux au point de vue de leurs Forces motrices et
de leur UtiUsation industrielle et agricole,' for the con-
sideration of the several States and any such action as
they might think fit.
The general provisional regime adopted by the
* The work of Sohulthess, Daa p. 208 — between Great Britain and
intematicmale Wasserrecht (1915), is the United States concerning the
moat valuable on this, as on every utilisation of the boundary waters
other question of International Law between the United States and
concerning territorial waters. Canada.
" See above, § 127.
' See, for instance, the Treaty of * See Annuaire, xxiv. (1911), p.
Washington of January 11, 1909 — 365. See also Bar in S.O., xvii.
Martens, N.B.O., 3rd Ser. iv., (1910), pp. 281-288.
VOL. I. X
322
STATE TERRITORY
Treaties of Peace for international rivers contains — as
has already been mentioned (see above § 178) — a pro-
vision that no riparian State may undertake any works
of a nature to impede navigation in the international
section, unless all the riparian States (or all the States
represented on the International Commission, if there
is one) agree that rights of irrigation, water-power,
fisheries, or other national interests should be given
priority over the requirements of navigation.^ But
apart from this, and from special stipulations in the
treaties deahng with particular cases, no steps have as
yet been taken to give effect to the recommendations
of the Institute.
IV
LAKES AND LANB-LOCKED SEAS
Vattel, i. § 294— Hall, § 38— Phillimore, i. §§ 205-205o— Twisa, i. § 181—
Halleok, i. pp. 181-182— Moore, i. §§ 135-143— Hershey, Noa. 197-198—
Bluntsohli, § 316— Hartmann, § 58— Heffter, § 76— Caratheodory in
Holtzendorff, ii. pp. 378-385— Gareis, §§ 20-21— Liazt, § 9— UUmann,
§§ 88 and 106— Bbnfila, Noa. 495-505— Deapagnet, No. 407— M^rignhao,
ii. 587-595— Pradier-Fod6r6, ii. Nos. 640-649— Nya, i. pp. 488-491—
Oalvo, i. §§ 301, 373, 374, 383— Fiore, ii. Noa. 811-813, and Code, Noa.
284 and 1005— Martens, i. § 100— Rivier, i. pp. 143-145, 230— Miaoheff,
La Mer Noire et lea D4troits de Gonstantinople (1901) — Schultheaa,
Daa intemationale Waeaerrecht (1915) — Hunt in A.J., iv. (1910), pp.
285-313.
Lakes and § 179. Thcory and practice agree upon the rule that
looked such lakes and land-locked seas as are entirely enclosed
Seas state w the land of one and the same State are part of the
i roporty , ,
of Ri- territory of this State. Thus Lake Windermere is part
itatos. of British territory, and the Lake of Como is Itahan
territory. As regards, however, such lakes and land-
locked seas as are surrounded by the territories of several
States, no unanimity exists. The majority of writers
consider these lakes and land-locked seas parts of the
* See Treaty of Peace with Germany, Article 337.
LAKES AND LAND-LOCKED SEAS 323
surrounding territories, but several^ dissent, asserting
that these lakes and seas do not belong to the riparian
States, but are free like the open sea. The practice of
the States seems to favour the opinion of the majority
of writers, for special treaties frequently arrange what
portions of such lakes and seas belong to each of the
riparian States.^ Examples are : The Lake of
Constance,^ which is surrounded by the territories of
Germany (Baden, Wiirtemberg, Bavaria), Austria, and
Switzerland (Thurgau and St. Gall) ; the Lake of
Geneva, which belongs to Switzerland and France ; the
Lakes of Huron, Erie, and Ontario, which belong to the
British Dominion of Canada and the United States.*
§ 180. In analogy with so-called international rivers, so-oaiied
such lakes and land-locked seas as are surrounded by^yo^g^i
the territories of several States and are at the same Lakes and
time navigable from the open sea, are called ' inter- looked
national lakes and land-locked seas.' However,
although some writers ^ dissent, it must be emphasised
that hitherto the Law of Nations has not recognised
the principle of free navigation on such lakes and seas.
The only case in which such free navigation is stipulated
is that of the lakes within the Congo district.® But
' See, for instance, Calvo, i. § 301 ; made by an exchange of Notes
Caratheodory in Holtzendorff, ii. between Great Britain and the United
p. 378. States on April 28 and 29, 1817, does
* As regards the utilisation of the not stipulate neutralisation, but only
flow of such lakes and seas, the same limits the number of war-vessels to
is valid as that oonoeming the utilisa- be kept on the lakes by the two
tion of the flow of rivers. See above. Governments. See Moore, i. § 143.
§ 178a. ' See, for instance, Rivier, i. p.
' See Stoffel, Die Fiacherei-Ver- 230; Caratheodory in Holtzendorff,
hcUtrmae des Bodenaees mUer beson- ii. p. 378 ; Calvo, i. § 301.
derer Beriidcaichtigung der an ihm ' Article 15 of the General Act of
beateJienden Hoheitirechte (1906). the Congo Conference — see Martens,
* As regards jurisdiction, fisheries, N.B.G., 2nd Ser. x. p. 417 — by
and navigation on the Canadian- which free navigation was originally
American lakes, see Moore, i. §§ 186- stipulated, was abrogated by the
143, and Callahan, The Neutrality convention signed at St. Germain
of the American Lakes and Anglo- on September 10, 1919 (Treaty Ser.
AinericanBdaticma(l9a»). It would No. 18 (1919), Cmd. 477), but the
be wrong to consider these lakes free navigation of these lakes is
neutralised, because the agreement provided for in the new convention.
324
STATE TERRITORY
there is no doubt that in a near future this principle will
be recognised, and practically all so-called international
lakes and land-locked seas are actually open to merchant-
men of all nations. Good examples of such international
lakes and land-locked seas are the above-named Lakes
of Huron, Erie, and Ontario.
TheCaa- § 181. It is of interest to give a few details as to the
and°thr position of the Caspian Sea and the Black Sea before
Black the World War.
The Caspian Sea, which was surrounded by Russian
and Persian territory, belonged in part to Russia and
in part to Persia, and navigation was regulated by Article
5 of the Russo-Persian Treaty of Guhstan ^ of October
12, 1813, and by Article 8 of the Russo-Persian Treaty
of Tourkmantschai 2 of February 22, 1828. By these
stipulations a distinction was drawn between merchant-
men and vessels of war. Navigation was open to the
merchantmen of both Powers ; Russian vessels were
admitted to cabotage (see below, § 579) on the Persian
coasts and Persian vessels on the Russian coasts. But
Russia alone had the right to maintain vessels of war
on the Caspian Sea.
The Black Sea was a land-locked sea which was un-
doubtedly whoUy a part of Turkish territory as long as
the enclosing land was all Turkish, and as long as the
Bosphorus and the Dardanelles, the approach to the Black
Sea, which were exclusively part of Turkish territory, were
not open for merchantmen of all nations. But matters
changed when Russia, Roumania, and Bulgaria became
httoral States. It was wrong to maintain that the
Black Sea then became part of the territories of the four
States, for the Bosphorus and the Dardanelles, although
belonging to Turkish territory, wer6 nevertheless parts
of the Mediterranean Sea, and were open to merchant-
' See Martens, N.R., iv. p. 89.
2 See Martens, N.B„ vli. (ii.) p. 564.
CANALS 325
men of all nations. The Black Sea consequently became
part of the open sea ^ and was not the property of
any State. Article 11 of the Peace Treaty of Paris,^
1856, neutraHsed the Black Sea, and declared it open to
merchantmen of all nations, but interdicted it to men-
of-war of the httoral as well as of other States, admit-
ting only a few Turkish and Eussian public vessels for
the service of their coasts. But although the neutrahsa-
tion was stipulated ' formally and in perpetuity,' it
lasted only till 1870. In that year, during the Franco-
German War, Eussia shook ofi the restrictions of the
Treaty of Paris, and the Powers assembled at the Con-
ference of London signed, on March 13, 1871, the Treaty
of London,^ by which the neutrahsation of the Black
Sea and the exclxision of men-of-war therefrom were
abolished. But the right of the Porte to forbid foreign
men-of-war passage through the Dardanelles and the
Bosphorus * was upheld by that treaty, as was also free
navigation for merchantmen of all nations on the Black
Sea.
Owing to the uncertain situation in the Middle East,
and in particular the position in Eussia, it is not at
present possible to make any statement as to the status
of the Caspian and Black Seas since the conclusion of
the World War.
CANALS
Weatlake, i. pp. 338-349— Lawrence, § 90, and Masays, pp. 37-146— Philli-
more, i. §§ 99a and 207— Moore, iii. §§ 336-371— Hershey, No. 201—
Caratheodory in Soltzendorff, ii. pp. 386-405^— Liszt, § 27 — Ullmann,
§ 106— Bonfils, Nos. 511-515— Despagnet, No. 418— M^rignhao, ii. pp.
597-605— Pradier-Fod6r6, ii. Nos. 658-660— Nys, i. pp. 516-539— Rivier,
i. § 16— Calvo, i. §§ 376-380— Fiore, Gode, Nos. 988-992— Martens, ii.
' See below, § 252. ' See Martens, if.B.O., xviii. p.
303.
' See Martens, N.B.G., xv. p. 775. * See below, § 197.
326 STATE TEERITORY
§ 59— Sir Travers Twiss in R.I., vii. (1875), p. 682, xiv. (1882), p. 572,
XTii. (1885), p. 615 — Holland, Studies, pp. 270-293 — Asser in R.I.,
XX. (1888), p. 529— Bustamante in E.I., xxvii. (1895), p. 112— Roasignol,
Le Canal de Suez (1898)— Oamand, Mude ewr U Bigime jmidique du
OcmcU de Suez (1899)— Charles-Eoux, L'ltthme el le Ganal de Suez (1901)
— Othalom, Der Suezhcmal (1905)— MuUer-Heymer, Der Panamahmdl
in der Politik der Vereinigten Staaten (1909)— Arias, The Panama Oamxd
(1911) — Catellani, II Oautude di Pamama (1913) — Bunau-Varilla,
Panama (1913) — Dedreux, Der Suezhanal im intemationcden Rechte
(1913) — Georgi Dufour, Urkunden zv/r Oeechichte det Suezkanalt (1913)
— Laiin, Die Intemationalitierung der Meerengen und KaniUe (1918) —
Hains, Davis, Knapp, Olney, Wambaugh, and Kennedy in A. J., iii.
(1909), pp. 354 and 885, iv. (1910), p. 314, v. (1911), pp. 298, 615,
620— Lehmann in Z.I., xxiii. (1913), pp. 46-102— Baty in Jahrhnch,
dea Volkerrechts, i. (1913), pp. 453-480 — Diana in Z.I., xxv. (1915),
pp. 14-22.
Canals § 182, That canals are parts of the territories of the
perty of" respective territorial States is obvious from the fact
state"™ ^^^^ *^®y ^^® artificially constructed waterways. And
there ought to be no doubt ^ that all the rules regarding
rivers must analogously be appHed to canals. The
matter would need no special mention at all were it
not for the interoceanic canals which were constructed
during the second half of the nineteenth century or are
contemplated in the future. As regards one of these,
the Corinth Canal, which connects the GuK of Corinth
with the Gulf of ^Egina, there is not much to be said.
It is entirely within the territory of Greece, and although
the canal is kept open for navigation to vessfels of all
nations, Greece exclusively controls the navigation
thereof.
The Suez § 183. The most important of the interoceanic canals
is that of Suez, which coimects the Eed Sea with the
Mediterranean. Already in 1838 Prince Mettemich
gave his opinion that such a canal, if ever made, ought
to become neutralised by an international treaty of the
Powers, and as early as 1856, before the commencement
of the building of the canal, Lesseps made proposals for
' See, however, Holland, Studies, p. 278.
Canal.
CANALS 327
its neutralisation. When, in 1869, the Suez Canal was
opened, jurists and diplomatists at once discussed what
means could be found to secure free navigation upon it
for vessels of all kinds and all nations in time of peace as
well as of war. In 1875 Sir Travers Twiss ^ again pro-
posed the neutrahsation of the canal, and in 1879 the
Institute of International Law gave its vote ^ in favour
of the protection of free navigation on the canal by an
international treaty. In 1883 Great Britain proposed
an international conference to the Powers for the pur-
pose of neutralising it, but it took several years before
an agreement was achieved. This was done by the
Convention of Constantinople ^ of October 29, 1888,
between Great Britain, Austria-Hungary, France, Ger-
many, Holland, Italy, Spain, Russia, and Turkey. This
treaty comprises seventeen articles, the more important
stipulations of which are the following :
(1) The canal is open in time of peace as well as of
war to merchantmen and men-of-war of all nations. No
attempt to restrict this free use of the canal is allowed
in time either of peace or of war. The canal can never
be blockaded (Article 1).
(2) In time of war, even if Turkey is a belligerent,
no act of hostihty is allowed either inside the canal itself
' See B.I. , vii. pp. 682-694. respecting Egypt and Moroooo signed
' See Annuaire, iii. and iv., vol. i. at London on April 8, 1904, by
p. 349. Great Britain and France (see Part.
' See Martens, N.B.G., 2nd Ser. Papers, Trance, No. 1 (1904), p. 9),
XV. p. 557. It must, however, be did away with this reservation,
mentioned that Great Britain became since it stipulated that : ' In order
a party to the Convention of Con- to ensure the free passage of the
stantinople under the reservation Suez Canal, His Britannic Majesty's
that its terms should not be brought Government declare that they adhere
into operation in so far as they to the stipulations of the Treaty of
were not compatible with the October 29, 1888, and that they
transitory and exceptional condition agree to their being put in force,
in which Egypt was put for the time The free passage of the oanal being
being in consequence of her occupa- thus guaranteed, the execution of the
tion by British forces, and in so far last sentence of paragraph 1 as well
as they might fetter the liberty of as of paragraph 2 of Article 8 of that
action of the British Government Treaty will remain in abeyance.'
during the occupation of Egypt. (See Holland, Stvdies, p. 293, and
But Article 6 of the Declaration Westlake, i. p. 345.)
328
STATE, TERRITORY
or within three sea miles from its ports. ^ Meu-of-war
of the belligerents have to pass through the canal without
delay. They may not stay longer than twenty-four
hours, a case of absolute necessity excepted, within the
harbours of Port Said and Suez, and twenty-four hours
must intervene between the departure from those
harbours of a belhgerent man-of-war and a vessel of
the enemy. Troops, munitions, and other war material
may neither be shipped nor unshipped within the canal
and its harbours. All rules regarding belligerents' men-
of-war are likewise vaUd for their prizes (Articles 4, 5, 6).
(3) No men-of-war are allowed to be stationed inside
the canal, but each Power may station two men-of-war
in the harbours of Port Said and Suez. BeUigerents,
however, are i?.ot allowed to station men-of-war in these
harbours (Article 7). No permanent fortifications are
allowed in the canal (Article 2).
(4) The signatory Powers are obliged to notify the
treaty to others and to invite them to accede thereto
(Article 16).
On December 18, 1914, Great Britain proclaimed a
protectorate over Egypt, and by the Treaties of Peace
Germany ^ and Austria ^ have consented, and Turkey
will consent, to the transfer to the British Government
of the powers conferred by the Suez Canal Convention
upon the Sultan.
^ In 1914, during the World War, and were then captured on the high
the question arose whether, since no seas by British ci'uisers. The British
hostilities might be committed eitlier Prize Court in Egypt condemned
inside the Suez Canal or within three them, and the Privy Council con-
miles of its ports, enemy merchant- firmed the condemnation. See The
men were entitled to regard the har- Pindos, HdgolaTid, and Boatock (1 B.
hours of the Canal as neutral ports, and C. P.C. 248, 2 B. and C. P.C. 146) ;
offering tliem an asylum for the whole The Outenfds, Barenfels, and Derff-
war. A number of German mer- Hrejer (1 B. and C.P.C. 102, 122, 2 B.
ohantmen, which were at Port Said and C.P.C. 36) ; H.M. Procurator
and Siiez at the outbreak of the war, v. Devtsches Kohlen Depot (2 B. and
refused to leave the canal in spite of C.P.C. 439, 3 B. and C.P.C. 265) ;
the offer of a free pass. Since they The Svdmark (No. 2) (2 B, and
declined to leave, they were taken C.P.C 473).
outside the limits of tlie ports of the ' Article 152.
canal, and outside territorial waters, ' Article 107.
CANALS 329
§ 183a. The Kiel Canal, which connects the Baltic The Kiel
with the North Sea, was constructed by Germany,
mainly for strategic purposes. It runs wholly through
German territory, and before the World War, although
Germany in fact kept it open to vessels of other nations,
she controlled navigation, and could at any time have
closed it to them, apart from any special treaty relations.
But by Articles 380-386 of the Treaty of Peace with
Germany, it is provided that the canal and its approaches
shall be maintained free and open to the vessels of
commerce and of war of all nations at peace with Ger-
many on terms of entire equaMty, and that only such
charges shall be levied as are intended to cover in an
equitable manner the cost of maintaining or improv-
ing the conditions of navigation. Germany is bound to
ensure that good conditions are maintained, to remove
any obstacle or danger to navigation, and to refrain
from works of a nature to impede it. The League of
Nations is to institute a ' jurisdiction ' to hear disputes
as to the interpretation of these articles, and com-
plaints of their violation ; but small questions are to
be determined in the first instance by a local authority
at Kiel.
§ 184. Already in 1850 Great Britain and the United The
States, in the Clayton-Bulwer Treaty i of Washington, ll^^''
had stipulated the free navigation and neutrahsation of
a canal between the Pacific and the Atlantic Ocean
proposed to be constructed by the way of the river St.
Juan de Nicaragua and either or both of the lakes of
Nicaragua and Managua. In 1881 the building of a
canal through the Isthmus of Panama was taken in
hand, but in 1888 the works were stopped in conse-
quence of the financial collapse of the company under-
' See Martens, iV.iJ.©., XV. p. 187, was also to be applied to a pro-
and Moore, iii. §§ 351-365. Accord- posed canal through the Isthmus of
ing to its Article 8 this treaty Panama.
330
STATE TERRITORY
taking its construction. After this the United States
came back to the old project of a canal by the way of
the river St. Juan de Nicaragua. For the eventuaUty
of the completion of this canal, Great Britain and the
United States signed, on February 5, 1900, the Con-
vention of Washington, which stipulated free naviga-
tion on, and neutralisation of, the proposed canal in
analogy with the Convention of Constantinople, 1888,
regarding the Suez Canal. This convention was not
ratified, because the Senate made amendments which
Great Britain could not accept.
In the following year, however, on November 18,
1901, another treaty was signed and afterwards ratified.
This so-called Hay-Pauncefote Treaty ^ applies to a
canal between the Atlantic and Pacific Oceans, by what-
ever route may be considered expedient, and super-
sedes the Clayton-Bulwer Treaty. Under it the United
States has the exclusive right of providing for the
regulation and management of the canal, and a number
of rules, substantially as embodied in the Suez Canal
Convention, are adopted ' as the basis of the neutralisa-
tion ' of the canal. It is to be free and open to the
vessels of commerce and of war of all nations observing
these rules on terms of entire equality ; ^ it is never to
be blockaded, nor shall any right of war be exercised
' See Moore, iii. §§ 366-368. the passage ofnew legislation in 1914.
The literature upon it was very
^ This provision that the canal is voluminous. See PaW. Papers, Miso.,
to be free and open to the vessels of No. 12 (1912), Cd. 6451 ; Oppen-
all nations ' on terms of entire equal- heim, The Panama Canal Confiict
ity, so that there shall be no dis- (2nd. ed. 1913) ; Richards, The Pan-
crimination against any such nation, ama Canal Controversy (1913) ; Root,
or its citizens or subjects, in respect The OUigations of the United States
of the conditions or charges of traflSo, as to Panama Canal Tolls (1913);
orotherwise,' was held by the British and articles in the Law Magazine
Government to be violated by the and Review, xxxviii. (1912-1913),
fifth section of the Panama Canal Act A.J., vi. (1912), and vii. (1913),
of August 24, 1912, which gave pre- R.I., 2nd Ser. xiv. (1912), Z. V., vi.
ferential treatment to the vessels of (1913), Z.I., xxiii. (1913), Jahrbuch
the United States. Thus arose the jwr Volkerrecht, i. (1913), and the
lengthy ' Panama Canal Conflict,' Proceedings of the Americam Society
which was amicably settled through (^International Law, vii. (1913).
CANALS 331
or any act of hostility be committed within it. The
United States is, however, at Uberty to maintain such
military pohce along the canal as may be necessary to
protect it against lawlessness and disorder.^ The transit
of belligerent vessels and prizes through the canal is
to be effected with the least possible delay, and they
may not revictual, or take any stores, except so far
as may be strictly necessary. No belhgerent is to
embark or disembark troops or munitions of war in the
canal, or in the waters within three marine miles of
either end of it. A belhgerent war vessel may not
remain in such waters for more than twenty-four hours
at any one time, except in distress, and may not depart
within twenty-four hours from the departure of a war
vessel of the other belhgerent. All works necessary to
the construction, operation, and maintenance of the
canal are to enjoy immunity from attack and injury in
time of war as in time of peace.
On November 18, 1903, the so-called Hay-Varilla
Treaty ^ was concluded between the United States and
the new Repubhc of Panama, according to which, on
the one hand, the United States guarantees and will
maintain the independence of the EepubKc of Panama,
and, on the other hand, the Repubhc of Panama grants ^
to the United States in perpetuity for the construction,
administration, and protection of a canal between Colon
and Panama the use, occupation, and control of a strip
of land required for the construction of the canal, and,
further, of land on both sides of the canal to the extent
of five miles on either side, with the exclusion, however,
of the cities of Panama and Colon and the harbours
' The question whether the United v. (1911), pp. 298, 615, 620.
States had a right to fortify the ^ See Martens, JSf.R.G., 2nd Ser.
Panama Canal was much discussed xxxi. p. 599.
before the World War. See Hains ' Tliat this grant is really cession
and Davis in A. J., iii. (1909), pp. all but in name, was pointed out
354-394 and pp. 885-908, and Obiey, above, § 171 (4) ; see also below,
Wambaugh, and Kennedy iniA.J., §216.
332
STATE TERRITORY
adjacent to these cities. According to Article 18 of
this treaty the canal and the entrance thereto shall be
neutral in perpetuity, and shall be open to vessels of all
nations as stipulated by Article 3 of the Hay-Pauncefote
Treaty.
The Panama Canal was opened in 1914/ and rules for
its operation and navigation were issued by the United
States. After the outbreak of the World War, on
November 13, 1914, a proclamation was issued prescrib-
ing rules for its use by beUigerent vessels,^ and when
the United States had entered the war a further pro-
clamation was issued on May 23, 1917.^
VI
MARITIME BELT
Grotius, ii. o. 3, §§ 9-12— Vattel, i. §§ 287-290— Hall, §§ 41-42— Westlake, i.
pp. 187-196— Lawrence, § 87— Phillimore, i. §§ 197-201— Twiss, i. §§ 144,
190-192— Halleok, i. pp. 167-179— Taylor, §§ 247-250— Walker, § 17—
Wharton, i. § 32— Moore, i. § 144-152— Wheaton, §§ 177-180— Hershey,
Nos. 191-194— Bluntschli, §§ 302, 309-310— Hartmann, § 58— Heffter,
§ 75— Stoerk in SoUztvdmff, ii. pp. 409-453— Garels, § 21— Liszt, § 9
— UUmann, § 87— Bonfils, Nos. 491-494— Despagnet, Nos. 403-414—
M&ignhao, ii. pp. 370-392— Pradier-Fod6r6, ii. Nos. 617-639— Nys, i.
pp. 540-569— Rivier, i. pp. 145-153— Calvo, i. §§ 353-365— Fiore, ii.
Nos. 801-807, and Code,, Nos. 267-271, 276-278, 1030— Martens, i. § 99
— Bynkershoek, De Dominio Maris and Qtiaestiones Juris publici, i. o. 8
— Ortolan, Diplomatie de la Mer (1856), i. pp. 150-175 — Heilborn,
System, pp. 37-57 — Imbart-Latour, La Mer lerritoricUe, etc. (1889) —
Godey, La Mer cdtiire (1896) — Sliiioking, Das Kiistenmeer im inter-
nationalen Bechte (1897) — Perels, §5 — Fulton, The Sovereignty of the
^ By a treaty between the United United States Government has any
States and Nicaragua, signed at present intention of building another
Washington on August 5, 1914, canal, but merely desires to hold an
and ratified on June 22, 1916, option over the only other available
Nicaragua granted to the United routes to prevent any possibility of
States, in return for a sum of competition with the Panama Canal.
13,000,000, the exclusive right to (See Finch in A.J., x. (1916), pp.
construct and manage an inter- 344-351.)
^irirt (meTsu^iSfnt; ' ^•^■' - '191^'. PP- 167-175.
p. 258.) It does not seem that the " A/., xi. (1917), pp. 165-168.
MARITIME BELT 333
Sea (1911), pp. 537-603— Raestad, La Mer territoriale (1913), and in
B.G., xix. (1912), pp. 598-623, xxi. (1914), pp. 401-420— Schramm, Daa
Prieenrecht (1913), pp. 66-74 — Barclay in Anniiaire, xii. (1892), pp.
104-136, andxiii. (1894), pp. 125-162— Martens in iJ.G., i. (1894), pp. 32-
43— Aubert, ibid. pp. 429-441— Engelhardt in S.I., xxvi. (1894), pp.
209-213— Godey in E.G., iii. (1896), pp. 224-237— Lapradelle in E.G., v.
(1898), pp. 264-284, 309-347— Baloh in the Proceedings of the American
Society of International Law, vi. (1912), pp. 132-141 — Barclay and
Charteris in Beporis of the International Law Association, vol. xxvii.
(1912), pp. 81-127— Kraemer in Z. V., vii. (1913), pp. 123-152— Salmond
in the Law Quarterly Review, xxxiv. (1918), pp. 235-252.
§ 185. Maritime belt is that part of the sea which, state Pro-
in contradistinction to the open sea, is under the sway Mantime
of the Uttoral States. But no unanimity exists with ^g^^g^""'
regard to the nature of the sway of the Httoral States.
Many writers maintain that such sway is sovereignty,
that the maritime belt is a part of the territory of the
littoral State, and that the territorial supremacy of the
latter extends over its coast waters. Whereas it is
nowadays universally recognised that the open sea
. cannot be State property, such part of the sea as makes
the coast waters would, according to the opinion of
these writers, actually be the State property of the
Httoral States, although foreign States have a right of
innocent passage for thein merchantmen through the
coast waters,
On the other hand, many writers ^ of great authority
emphatically deny the territorial character of the mari-
time belt, and concede to the littoral States, in the
interest of the safety of the coast, only certain powers
of control, jurisdiction, pohce, and the like, but not
sovereignty.
This is surely erroneous, since the real facts of
international life would seem to agree with the first-
mentioned opinion only. Its supporters rightly main-
taiQ 2 that the universally recognised fact of the exclusive
' Their arguments are very ably treated with great clearness by
stated by Lapradelle in E.G., v. Heilborn, System, pp. 36-58, and
(1898), pp. 273-284 and 309-330. Shiioking, op. cit., pp. 14-20.
* Hall, p. 155. The question is
334
STATE TERRITORY
right of the littoral State to appropriate the natural
products of the sea in the coast waters, especially the
use of the fishery therein, can coincide only with the
territorial character of the maritime belt, (The argu-
ment of their opponents that, if the belt is to be con-
sidered a part of State territory, every littoral State
must have the right to cede and exchange its coast
waters, can properly be met by the statement that terri-
torial waters of all kinds are inahenable appurtenances ^
of the Uttoral and riparian States.^
Breadth § 186. Be that as it may, the question arises how
time Beit. ^^^ ^^^ ^^^ ^^^ those Waters extend which are coast
waters, and are therefore under the sway of the httoral
State. Here, too, no unaninjity exists as to the breadth
of the belt or the point on the coast from which it is
measured.
(1) Whereas the starting line is sometimes drawn
along high-water mark, many writers draw it along low-
water mark. Others draw it along the depths where
the waters cease to be navigable ; others again along
those depths where coast batteries can stiU be erected,
and so on.^ But the number of those who draw it along
low-water mark is increasing. The Institute of Inter-
national Law * has voted in favour of this starting line,
and many treaties stipulate the same.
(2) With regard to the breadth of the maritime belt
various opinions have in former times been held, and
^ See above, § 175. Bynkershoek's sovereignty. The Privy Coimoil in
opinion {De Dominio Maris, c. 5) A.G. for British Columbia v. A.G.
that a littoral State can alienate its for Canada, [1914] A.C. 153, at p.
maritime belt without the coast it- 174, declared that the question was
self is at the present day untenable. not settled.
' Thefaotthat Article 1 of Conven- a o cji.- i ■ •. in
tion 13 (Rights and Duties of Neutral ^^^ Shucking, op. c,«. , p. 13.
Powers in Maritime War) of the * See Annuaire, xiii. p. 329. But
second Hague Peace Conference, before the World War the Institute
1907, speaks of ' sovereign rights was reconsidering the question. See
... in neutral waters ' would seem reports by Barclay in Annvaire, xxv.
to indicate that the States them- (1912), pp. 375-396, and Oppenheim
selves consider their sway over the in Annuaire, xxvi. (1913), pp. 403-
raaritime belt to be of the nature of 412.
MABITIME BELT 335
very exorbitant claims have been advanced by different
States, such as a range of sixty or a hundred miles,
or a range of vision (about fourteen miles). Although
Bynkershoek's rule that terrae potestas finitur vhi jmitur
armorum vis is now generally recognised by theory and
practice, and consequently a belt of such breadth is
considered under the sway of the littoral State as is
within efiective range of the shore batteries, there is still
no unanimity on account of the fact that such range
is day by day increasing. Since at the end of the
eighteenth century the range of artillery was about three
miles, or one marine league, that distance became gener-
ally 1 recognised as the breadth of the maritime belt.
But no sooner was a common doctrine originated than
the range of projectiles increased with the manufacture
of heaAaer guns. And although Great Britain, France,
Austria, the United States of America, and other States
in Municipal Laws and International Treaties still
adhere to a breadth of one marine league, there is much
agitation in favour of extending it considerably by
common agreement.^ As regards Great Britain, the
Territorial Waters Jurisdiction Act ^ of 1878 (41 & 42
Vict. c. 73) indirectly recognises ^ the extent of the terri-
' But not universally. Thus Nor- of the belt. See ATmmaWe, xiii. p.
way claims a breadth of four miles 286. A good survey of the attitude
and Spain even a breadth of six of all maritime States oonoerning the
miles. As regards Norway, see width of the maritime belt is given
Aubert in R.Q., i. (1894), pp. 429- by Baestad in R.G., xxi. (1914), pp.
441. Sweden claimed a breaidth of 401-420.
four miles in the case of The Elida ' See above, § 25, and Maine, p. 39.
{Z.V., ix. (1915), p. 109), but the * It is frequently asserted — see.for
claim was disallowed by the German instance, Fulton, op. cit., pp. 591-593
Prize Court of Appeal. Great Britain — that the Territorial Waters Juris-
refused in 1914, during the World diction Act does not recognise the
War, to recognise a claim of the width of the maritime belt in general
Argentine and Uruguay to a belt to be three miles. Since, however, by
more than three miles wide. See section 7 the term ' territorial waters
below, vol. ii. § 71 n., where the of Her Majesty's dominions means
extensions claimed by France and such part of the sea adjacent to the
Italy are also mentioned. coast ... as is deemed by Inter-
' The Institute of International national Law to be within the terri-
Law has voted in favour of six miles, torial sovereignty of Her Majesty,'
or two marine leagues, as the breadth and according to the practice of
336
STATE TERRITORY
torial maritime belt as three miles, or one marine league,
measured from the low-water mark of the coast.
Fisheries, § 187. Theory and practice agree upon the following
PoUoe, ' principles with regard to fisheries, cabotage, pohce, and
t^eOere- Diaritime ceremonials within the maritime belt :
•"P^ais (1) The httoral State may reserve the fisheries within
Belt. the maritime belt ^ exclusively for its own subjects,
whether fish or pearls or amber or other products of
the sea are under consideration.
(2) The Uttoral State may, in the absence of special
treaties to the contrary, exclude foreign vessels from
navigation and trade along the coast, the so-called
cabotage,^ and reserve this cabotage exclusively for its
own vessels. Cabotage meant originally navigation and
trade along the same stretch of coast between the ports
thereof, such coast belonging to the territory of one and
the same State. However, the term cabotage or coast-
ing trade as used in commercial treaties comprises now ^
sea trade between any two ports of the same country,
whether on the same coasts or different coasts, pro-
vided always that the different coasts are all of them
the coasts of one and the same country as a poUtical
and geographical unit in contradistinction to the coasts
of colonial dependencies of such country.
(3) The littoral State may exclusively exercise pohce
and control within its maritime belt in the interest of
its customs duties, the secrecy of its coast fortifications,
and the Uke. Thus foreign vessels can be ordered to
take certain routes and to avoid others.
Great Britain there is a rule of In- maritime belt three miles wide.
ternationa,l Law which reatriots the See, for instance. Article 2 of the
width of the maritime belt to three Hague Convention eoneeming Police
miles, the conclusion would seem to and Fishery in the North Sea of May
be inevitable that the Act indirectly 6,1882. Martens, iV.iJ.C, 2nd Ser.
recognises the extent of the mari- ix. p. S56.
time belt as three miles. 'Specially' e o„„t>™j;„. T7„ji x at r>^<,
in the last edition of this book wis ^iJ ^'^^'^^■^°'^^':^' ^- Nos. 2441.
a misprint for ' indirectly.'
^ Most treaties stipulate for the ' See below, § 579, where the
purpose of fisheries a territorial matter is more amply treated.
MARITIME BELT 337
(4) The littoral State may make laws and regulations
regarding maritime ceremonials to be observed by such
foreign merchantmen as enter its territorial maritime
belt.i
§ 188. Although the maritime belt is a portion of Naviga-
the territory of the littoral State and therefore under within
the absolute territorial supremacy of such State, the *^® ^^'*-
belt is nevertheless, according to the practice of all the
States, open to merchantmen of all nations for inofien-
sive navigation, cabotage excepted. And it is the
common conviction ^ that every State has by customary
International Law the right to demand that in time of
peace its merchantmen may inoffensively pass through
the territorial maritime belt of every other State. Such
right is correctly said to be a consequence of the freedom
of the open sea, for without this right navigation on
the open sea by vessels of all nations would in fact
be an impossibiUty. And it is a consequence of this
right that no State can levy tolls for the mere passage
of foreign vessels through its maritime belt. Although
the Httoral State may spend a considerable amount of
money on the erection and maintenance of lighthouses
and other facihties for safe navigation within its mari-
time belt, it cannot make foreign vessels merely passing
pay for such outlays. It is only when foreign ships
cast anchor within the belt or enter a port that they
can be made to pay dues and tolls by the Httoral State.
Some writers ^ maintain that all nations have the right
of inofiensive passage for their merchantmen by usage
only, and not by the customary Law of Nations, and
that, consequently, in strict law a littoral State may
prevent such passage. They are certainly mistaken.
An attempt on the part of a littoral State to prevent
free navigation through the maritime belt in time of
• See Twias, i. § 194. " See above, § U2.
' Kliiber, § 76 ; Pradier-Fod4r^, i. No. 628.
VOL, I,
338
STATE TERRITORY
peace would meet with stern opposition on the part of
all othdr States.
But a right for the men-of-war of foreign States to
pass unhindered through the maritime belt is not gene-
rally recognised. Although many writers assert the
existence of such a right, many others emphatically
deny it. As a rule, however, in practice no State actually
opposes in time of peace the passage of foreign men-of-
war and other public vessels through its maritime belt.
And it may safely be stated, first, that a usage has
grown up by which such passage, if in every way in-
offensive and without danger, shall not be denied in
time of peace ; and, secondly, that it is now a custo-
mary rule of International Law that the right of passage
through such parts of the maritime belt as form part
of the highways for international traffic cannot be denied
to foreign men-of-war.^ However that may be, passage
must not be confounded with entering a port or road-
stead. No State need allow this, although all States
do allow ^ it under certain conditions and with certain
exceptions.
Juris- § 189. That the littoral State has exclusive juris-
withTn the diction within the belt as regards mere matters of pohce
^^^*- and control is universally recognised. Thus it may
exclude foreign pilots, may make custom-house arrange-
ments, sanitary regulations, laws concerning stranded
vessels and goods, and the like. But it is a moot point ^
whether such foreign vessels as do not stay but merely
pass through the belt are for the time being under this
jurisdiction. It is for this reason that the British
Territorial Waters Jm-isdiction Act of 1878 (41 & 42
Vict. c. 73), which claims such jurisdiction, has called
* See below, § 449. Law — see Annuaire, xvii. (1898), p.
' All the regulations of the several 273 — adopted at its meeting at the
States concerning visits of foreign Hague in 1898 a 'R^glement sur le
men-of-war are printed in A. J., x. Regime 16gal des Na vires et de leurs
(1916), Supplement, pp. 121-178. Equipages dans les Ports strangers,'
' The Institute of International oomprising forty-six rules. ^
MARITIME BELT 339
forth protests from many writers.^ The controversy
itself can be decided only by the practice of the States.
The British Act quoted, the basis of which is, in my
opinion, sound and reasonable, is a powerful factor in
initiating such a practice ; but as yet no common prac-
tice of the States can be said to exist.
Different from the question of jurisdiction over pass-
ing foreign merchantmen is the question of jurisdiction
over such vessels when they cast anchor within the
maritime belt, or enter a port.^ It is agreed that such
vessels, and the persons thereon, fall under the jurisdic-
tion of the Uttoral State in case peace and order outside
the ship are disturbed, or persons other than crew or
passengers are affected. But many writers maintain,
and the practice of France and some other States sup-
ports their view, that the littoral State has no jurisdic-
tion in case only the internal order of the ship is affected,
or the relations between members of the crew or passengers
are alone concerned. However, there is no rule of Inter-
national Law which Limits its jurisdiction to this extent,
and it can therefore claim jurisdiction in all matters
over such merchantmen, and the persons thereon, as
have cast anchor within the maritime belt or entered a
port. On the other hand, the httoral State is not com-
pelled to exercise such jurisdiction, and many States
have therefore by commercial and consular treaties ^
stipulated that in such cases as those in which the in-
ternal order of the ship is alone concerned, jurisdiction
should be exercised, not by the littoral State, but by
' See Perels, pp. 69-77. The In- ^ See Praag, Nos. 260-270, where
stitute of International Law, which details of the practice of the several
at its meeting at Paris in 1894 States are given,
adopted a body of eleven rules re- ' See Hall, § 58 ; Moore, ii. § 204-
garding tiie maritime belt, gulfs, 208 ; Stoerk in Holtzendorff, ii. pp.
bays, and straits, voted against 446-453 ; Bonfils, Nos. 625-628 ;
the jurisdiction of a littoral State Despagnet, Nos. 429-430 ; Nielsen
over foreign vessels merely passing in A.J., xiii. (1919), pp. 5-12. See
through the belt. See Annua/ire, also the American case of WUdenhut,
xiii. p. 328. (1886) 120 U.S. 1.
340 STATE TERRITORY
the home State through its consul. But it should be
mentioned that, even where a Httoral State claims full
\ jurisdiction over foreign merchantmen in its ports, this
jurisdiction is to a certain small extent hmited when
the vessel has been compelled to enter a port in distress,^
because the ship must then in a small degree be regarded
as exterritorial.
Zone for § 190. Not to be confouudcd with the territorial mari-
^d Sani- ^^™^® ^^^^ ^^ ^^® ^^^^ of the Open sea over which a
*ary littoral State extends the operation of its revenue and
sanitary laws. The fact is that Great Britain and the
United States, as well as other States, possess revenue
and sanitary laws which impose certain duties not only
on their own but also on such foreign vessels bound for
one of their ports as are approaching, but not yet within
their territorial maritime belt.^ Twiss and Phillimore
agree in stating that in strict law these Municipal Laws
have no basis, since every State is by the Law of Nations
prevented from extending its jurisdiction over the open
sea, and that it is only the Comity of Nations which
admits tacitly the operation of such Municipal Laws
as long as foreign States do not object, and provided
that no measure is taken within the territorial maritime
belt of another nation. I doubt not that in time special
arrangements will be made as regards this point by
a universal international convention. But I beheve
I that, since Municipal Laws of the above kind have
been in existence for more than a hundred years and
have not been opposed by other States, a customary
* See Moore, ii. § 208, and the 128-130, 142-143. See also Hall,
award in the case of TJie Enterprise Foreign Powers and Jurisdiction, §§
in Moore, Arbitrations, p. 4349. 108-109, and Annuaire, xiii. (1894),
See also above, § 144 n. p. 135 ; the British so-called Ilover-
° The matter is treated by Moore, ing Acts (9 Geo. ii. o. 35, and 24
i. § 151 ; Taylor, § 248 ; Twiss, i. § Geo. Hi. o. 47) have been repealed,
190 ; Phillimore, i. § 198 ; Halleok, and the present English law on the
i. p. 157 ; Stoerk in Holtzendorff, aubjeot is contained in the Customs
ii. pp. 475-478 ; Perels, § 5, pp. 25- Consolidation Act (1876) (39 & 40
28; Baestad, op. cit., pp, 118-120, Vict. u. 36), §§53, 147,179,181,189.
MARITIME BELT 341
rule of the Law of Nations may be said to exist which
allows littoral States in the interest of their revenue
and sanitary laws to impose certain duties on such
foreign vessels bound for their ports as are approach-
ing, although not yet within, their territorial maritime
belt.
§ 190a. Since the most important lighthouses are built No Man-
outside the maritime belt of the littoral States, the aroun/ *
question arises whether a State can claim a maritime ^^^^*' .
belt aroimd its lighthouses in the open sea. Sir Charles the Sea.
Russell, in the Behring Sea Seal Fisheries case (see
below, § 284), answered it affirmatively as follows : ^
' I wish to point out that ... if a lighthouse is built upon
a rock, or upon piles driven into the bed of the sea, it
becomes, as far as that lighthouse is concerned, part of
the territory of the nation which has erected it, and, as
part of the territory of the nation which has erected it,
it has, incident to it, all the rights that belong to the
protection of territory — no more and no less. . . . That
point has never been doubted, and if it were, there is
ample authority to support it. The right to acquire by
the construction of a lighthouse on a rock in mid ocean
a territorial right in respect of the space so occupied is
undoubted.'
It is tempting to compare such lighthouses with
islands, and argue in favour of .a maritime belt around
them ; but I beheve that such an identification is mis-
leading, and that hghthouses must be treated on the
same lines as anchored Ughtships. Just as a State may
not claim sovereignty over a maritime belt around an
anchored lightship, so it may not make such a claim
in the case of a Hghthouse in the open sea.^
'■ See Moore, ArUlratiom, i. pp. 000-901.
' See Westlake, i. pp. 119, 190, who agrees with me.
342 STATE TERRITORY
VII
GULFS AND BAYS
Grotius, ii. o. 3, § 8— Vattel, i. § 291— Hall, § 41— Westlake, i. pp. 187-196—
Lawrence, § 72 — Phillimore, i. §§ 200-201a — Twiss, i. §§ 181-182 —
Halleck, i. pp. 170-174— Taylor, §§ 229-231— Walker, § 18— Hershey,
No. 195— Wharton, i. §§ 27-28— Moore, i. § 153— Wheaton, §§ 181-189
— Bluntaohli, §§ 309-310— Hartmann, § 58— HefFter, § 76— Stoerk in
Holtzendorff, ii. pp. 419-428 — Gareis, § 21— Liszt, § 9 — Ullmann,
§ 88— Bonfils, No. 516 — Despagnet, No3. 405-406 — Mdrignhao, ii. pp.
394-398— Pradier-Fod^rfi, ii. Nos. 661-681— Nys, i. pp. 477-488— Rivier,
i. pp. 153-157— Calvo, i. §§ 366-367— Fiore, ii. Nos. 808-815, and Code,
Nos. 279-283— Martens, i. § 100— Perels, § 5— Fulton, The Sovereignty
, of the Sea (1911), pp. 586-589 and 717-734— Shiieking, Das Kiittenmeer
im intemationalen Rechte (1897), pp. 20-24 — Barclay in Annuaire, xii.
pp. 127-129 — Charterls in Reports of the International Law Association,
xxiii. (1907), pp. 103-132, and xxvii. (1912), pp. 107-127— Oppenheim
in Z.V., i. (1907), pp. 579-587, and v. (1911), pp. 74-95— Salmond in
the Law Qua/rterly Review, xxxiv. (1918), pp. 235-252.
Terri- § 191. Such gulfs and bays as are enclosed by the
Gulfs and l^ind of one and the same Httoral State, and have an
Bays. entrance from the sea not more than six miles wide, are
certainly territorial ; those, on the other hand, that have
an entrance too wide to be commanded by coast batteries
erected on one or both sides of it, even though enclosed
by one and the same littoral State, are certainly not
territorial. These two propositions may safely be
maintained. It is, however, controversial how far bays
and gulfs encompassed by a single littoral State, and
possessing an entrance more than six miles wide, yet
not too wide to be commanded by coast batteries, can
be territorial. Some writers^ state that no such gulf
or bay can be territorial, and Lord Fitzmaurice declared
in the House of Lords on February 21, 1907, in the
' See Walker (§ 18), and Wilson certainly not recognised by geog-
and Tucker (5th ed. 1910, § 53). raphy ; for the very examples which
Westlake (vol. i. p. 191) cannot be he enumerates as gvlfs are all called
cited in favour of it, since he dis- hays, namely those of Conception, of
tinguishes between bays and gulfs in Canoale, of Chesapeake, and of
such a way as is not generally done Delaware,
by international lawyers, and as is
GULFS AND BAYS 343
name of the British Government, that only bays with
an entrance not more than six miles wide were to be
regarded as territorial. But in the North Atlantic
Coast Fisheries case, which was decided by the Permanent
Court of Arbitration at the Hague in 1910, Great Britain
disowned ^ the declaration by Lord Mtzmaurice. The
United States contended for its accuracy, but the Court
refused to agree. Other writers maintain that gulfs
and bays with an entrance more than ten miles wide, or
three and a third marine leagues, cannot belong to the
territory of the littoral State, and the practice of several
States, such as Germany, Belgium, and Holland, accords
with this opinion. But the practice of other countries,
approved by many writers, goes beyond this limit.
Thus France holds the Bay of Cancale to be terri-
torial, although its entrance is seventeen miles wide.
Great Britain holds the Bay of Conception in Newfound-
land and the Bays of Chaleurs and Miramichi in Canada
to be territorial, although the width between their head-
lands is twenty, sixteen, and fourteen rmles respectively.
Even the Hudson Bay in Canada, which embraces about
580,000 square miles, and the entrance of which is fifty
miles wide, is claimed as territorial by Great Britain.^
Norway claims the Varanger Fiord as territorial,
although its entrance is thirty-two miles wide. The
United States claims the Chesapeake and Delaware
Bays, as well as other inlets of the same character, as
territorial,^ although the entrance to the one is twelve
miles wide and to the other ten miles. The Institute of
International Law has voted in favour of a twelve miles
wide entrance, but admits the territorial character of
such gulfs and bays with a wider entrance as have
' See Oral Argument, part i. pp. xv. (1913), pp. 153-172, and in A.J.,
270-271. vi. (1912), pp. 409-459, vii. (1913),
^ But the claim is denied by the pp. 546-565,
United States. See Baloh in R.I., * See Taylor, § 229; Wharton, i.
2nd Ser. xiii. (1911), pp. 539-586, §§ 27 and 28 ; Moore, i. § 153.
344
STATE TERRITORY
been considered territorial for more than one hundred
years.i
As the matter stands, it is doubtful as regards many-
gulfs and bays whether they are territorial or not.
Examples of territorial bays in Europe are : The Zuider
Zee, which is Dutch ; and the Bay of Stettin, in the
Baltic, which is German, as is also the Jade Bay in the
North Sea. An international congress is desirable to
settle once for all which gulfs and bays are to be con-
sidered territorial. And it must be specially observed
that it is hardly possible that Great Britain would still,
as she formerly did for centuries, claim the territorial
character of the so-called King's Chambers,^ which
include portions of the sea between lines drawn from
headland to headland.
Non- § 192. Gulfs and bays surrounded by the land of
Gulf! and °^® ^^^ ^^^ Same Uttoral State whose entrance is so
Bays. -vpide that it cannot be commanded by coast batteries,
and, further, as a rule,^ all gulfs and bays enclosed by
the land of more than one Httoral State, however narrow
their entrance may be, are non-territorial.* They are
* See Annuaire, xiii. p. 329. ' This is not uncontested. A few
' Whereas Hall (§ 41, p. 159) says : writers — see, for instance, Twiss, i.
' England would, no doubt, not § 181 — assert that narrow gulfs and
attempt any longer to assert a right bays surrounded by the land of two
of property over the King's Cham- different States are territorial, the
bers,' Phillimore (i. § 200) still keeps central line dividing the territorial
up this claim, as did the Attorney- portions. However, the majority of
General before the Hague Court of publicists do not accept this opinion,
Arbitration in the North Atlantic and it would seem that the practice
Coast Fisheries case (see Orai Argu- of States likewise rejects it, except
ment, part ii. p. 1308). The attitude in the case of such bays as possess
of the British Government in the the characteristics of a closed sea.
Moray Firth ease — see below, p. 345 Thus, in the case of San Salvador v.
— would seem to demonstrate that Nicaragua, the International Court
this claim is no longer upheld. See of the Central American Republics
also Lawrence, § 87; Westlake, i. (see A. J., xi. (1917), pp. 693, 700-
p. 192; Grant in the Law Quarterly 717)deoidedinl917 that, taking into
Review, xxxi. (1915), pp. 410-420. consideration its geographical and
Fulton, op. cit., p. 121, gives a fac- historical conditions, as well as its
simile of a chart prepared by Trinity situation, extent, and configuration,
House in 1604, showing the bearings the Gulf of Fonseoa must be regarded
of the King's Chambers. as ' an historic bay possessed of the
* For an exception to the rule, see characteristics of a closed sea,' and
the nextnoteas to the Gulf of Fonseoa. that it therefore was part of the
GULFS AND BAYS 345
parts of the open sea, the marginal belt inside the gulfs
and bays excepted. They can never be appropriated ;
they are in time of peace and war open to vessels of all
nations, including men-of-war, and foreign fishing vessels
cannot, therefore, be compelled to comply with municipal
regulations of the littoral State concerning the mode of
fishing.
An illustrative case is that of the fisheries in the Moray
Firth. By Article 6 of the Herring Fishery ^ (Scotland)
Act, 1889, beam and otter trawhng is prohibited within
certain limits of the Scottish coast, and the Moray Firth
inside a Une drawn from Duncansby Head in Caithness
to Kattray Point in Aberdeenshire is included in the
prohibited area. In 1905, Mortensen, the captain of a
Norwegian fishing vessel, but a Danish subject, was
prosecuted for an ofience against the above-mentioned
Article 6, convicted, and fined by the Sheriff Court at
Dornoch, although he contended that the incriminating
act was committed outside three miles from the coast.
He appealed to the High Court of Justiciary, which,^
however, confirmed the verdict of the Sheriff Court,
correctly asserting that, whether or not the Moray
Firth could be considered as a British territorial bay,
the Court was bound by a British Act of Parliament,
even if such Act violates a rule of International Law.
The British Government, while recognising that the
Scottish courts were bound by the Act of Parliament
concerned, likewise recognised that, the Moray Firth
not being a British territorial bay, foreign fishing vessels
could not be compelled to comply with an Act of Parlia-
ment regulating the mode of fishing in the Moray Firth
outside three miles from the coast, and therefore re-
territories of San Salvador, Hon- territorial character of this gulf.
duras, and Nicaragua. The decision The attitude of other States is not
of this Court has, of course, only known,
force with regard to the three Central ^ 52 & 53 Vict. o. 23.
American States concerned ; but the ' Mortensen v. Peters, (1906) 14
United States acknowledges the S.L.T. 227.
346
STATE TEEEITORY
mitted Mortensen's fine. To remedy the conflict between
Article 6 of the above-mentioned Herring Fishery
(Scotland) Act, 1889, and the requirements of Inter-
national Law, Parliament passed the Trawling in Pro-
hibited Areas Prevention Act,^ 1909, according to which
no prosecution can take place for the exercise of pro-
hibited fishing methods outside the three miles from
the coast, but the fish so caught may not be landed
or sold in the United Kingdom.^
Naviga- § 193. As regards navigation, fishery, and jurisdiction
Fishery, ^^^ majority of pubhcists contend that the same rules of
and Juris- ^j^g La,w of Nations are vahd as in the case of navigation
diotion in -, n i -i- i • ■ i • ■ iimi
Terri- and fishery within the territorial maritime belt. The
GuMs and right of fishery may, therefore, exclusively be reserved for
Bays. subjects of the httoral State.^ And navigation, cabotage
excepted, must be open * to merchantmen of all nations,
though foreign men-of-war need not be admitted, unless
the gulfs or bays in question form part of the highways
of international traffic.
But the matter is not settled, and a few writers main-
tain that foreign vessels may be excluded altogether
from territorial gulfs and bays, or admitted only on
payment of dues, rates, etc. The author agrees with
the opinion of the majority.
' 9 Edw. VII. 0. 8. ten miles, but reserves likewise a
^ See Oppenheim in Z.V., v. maritime belt of three miles to be
(1911), pp. 74-95. measured from the line where the
' The Hague Convention oonoern- entrance is ten miles wide. Praoti-
ing Police and Fishery in the North cally the fishery is therefore reserved
Sea, ' concluded on May 6, 1882, for subjects of the littoral State
between Great Britain, Belgium, within bays with an entrance much
Denmark, France, Germany, and wider than ten miles. See Martens,
Holland, reserves by its Article 2 N'.B.O., 2nd Ser. ix. p. 556.
the fishery for subjects of the littoral * But this is not universally recog-
States of such bays as have an nised. See, for instance. Hall, § 41
entrance from the sea not wider than n. ; Twiss, i. § 181 ; Calvo, i. § 367.
STRAITS 347
VIII
STRAITS
Grotius, ii. c. 3, § 8— Vattel, i. § 292— Hall, § 41— Westlake, i. pp. 197-201—
Lawrence, §§ 87-89— PMUimore, i. §§ 180-196— Twiss, i. §§ 183, 184, 189
— Halleok, i. pp. 178-179— Taylor, §§ 230-231— Walker, § 17— Wharton,
i. §§27-29— Wheaton, §§ 181-191— Moore, 1. §§ 133-134— Hershey, No. 196
— Bluntsohli, § 303— Hartmann, § 65— Heffter, § 76— Stoerk in Holtzen-
dorff, ii. pp. 419-428— Gareis, § 21- Liszt, §§ 9 and 26— UUmann, § 88—
Bonfils, Nos. 506-511 — Despagnet, Nos. 415-417 — Pradier-Fod^r^, ii.
Nos. 650-656— Nya, i. pp. 492-515— Rivier, i. pp. 157-159— Calvo, i.
§§ 368-372— Fibre, ii. Nos. 745-754, and Code, Nos. 285-287— Martens,
i. § 101 — Holland, Studies, pp. 277-279 — Knorr, Die Donau und die
Meerengenfrage (1917) — Laun, Die InternoUionalisierung der Meerengen
und Kamdle (1918) — Salmond in the Law Quarterly Review, xxxiv. (1918),
pp. 235-252.
§ 194. All straits which are not more than six miles what
wide are certainly territorial. Therefore, straits oi^^^^^''^
this kind which divide the land of one and the same to"ai.
State belong to the territory of such State, Thus the
Solent, which divides the Isle of Wight from England,
and the Menai Strait, which divides Anglesey from Wales,
are British ; the Straits of Messina are Italian ; and
the Great Belt, which divides the islands of Fyn and
Sjaelland, is Danish. On the other hand, if such narrow
strait divides the land of two different States, it
belongs to the territory of both, and the boundary line
runs, in default of a special treaty making another
arrangement, through the mid-channel.^ Thus the
Strait of Juan de Fuca, which separates the Canadian
island of Vancouver from the territory of the United
States, and the Lymoon Pass, the narrow strait which
separates the British island of Hong-Kong from the
^ See below, § 199. According to number of British islands, though
Wunderlich, in Z.I., xxiii. (1913), the distance was nowhere more than
pp. 106-112, Germany, before the six miles. The German claim, which
World War, claimed the whole of was untenable, disappears with the
the waters between the coast of loss of the colony,
German South- West JAfrioa and a
348
STATE TERRITORY
continent, was half British and half Chinese as long
as the land opposite Hong-Kong was Chinese territory.
It is, however, controversial whether a strait more
than six miles wide, yet narrow enough to be commanded
by coast batteries erected on one or both sides of the
straits, can be territorial. The majority of publicists,
including Hall ^ and Hershey,^ assert that it can ; but
a minority, including WestTake^ and Taylor,* main-
tain that it cannot.
However this may be, it would seem that claims of
States over wider straits than those which can be com-
manded by guns from coast batteries can no longer be
upheld. Thus Great Britain used formerly to claim
the Narrow Seas — namely, the St. George's Channel,
the Bristol Channel, the Irish Sea, and the North
Channel — as territorial ; and PhiUimore asserts that
the exclusive right of Great Britain over these Narrow
Seas is uncontested. But it must be emphasised that
this right is contested, and though it was put forward
as recently as 1910, by the Attorney-General, before
the Hague Tribunal in the North Atlantic Coast Fisheries
case, I doubt how far Great Britain would now persist
in upholding her former claim. ^ The Territorial Waters
Jurisdiction Act, 1878, does not mention it.
Naviga- § 195. All rules of the Law of Nations concerning
Kshery, navigation, fishery, and jurisdiction within the maritime
and Juris- belt apply likewise to navigation, fishery, and jurisdiction
straits, within straits. Foreign merchantmen, therefore, cannot ^
^ § 41. ' p. 201. Court intended to refer only to
^ vol. i. p. 197. that portion of the Channel which
" § 230. lies within Steepholm and Flatholm.'
' See Phillimore, i. § 189, and See also Westlake, i. p. 192, n. 3.
above, § 191 (King's Chambers).
Concerning the Bristol Channel, ° The claim advanced by Russia —
Hall (§ 41, p. 159, n. 2) remarks: see Waultrin in B.O., xv. (1908),
' It was apparently decided by the p. 410 — to have a right to exclude
Queen's Bench in Beg. v. Cunning- foreign merchantmen from the pas-
ham (Bell CO. 86) that the whole sage through the Kara and the
of the Bristol Channel between Yugor Straits, was therefore un-
Somerset and Glamorgan is British founded. As regards the Kara Sea,
territory ; possibly, however, the see below, § 253, n. 2.
STRAITS 349
be excluded ; foreign men-of-war must be admitted
to such straits as form part of the highways for
international traffic ; ^ the right of fishery may ex-
clusively be reserved for subjects of the littoral State ;
and the latter can exercise jurisdiction over all foreign
merchantmen passing through the straits. If the narrow
strait divides the land of two different States, juris-
diction and fishery are reserved for each littoral State
within the boundary line running through the mid-
channel, unless otherwise arranged by treaty.
It must, however, be stated that the rule that foreign
merchantmen cannot be excluded from the passage
through territorial straits appUes only when they con-
nect two parts of the open sea. In case a territorial
strait belonging to one and the same State connects a
part of the open sea with a territorial gulf or bay, or
with a territorial land-locked sea belonging to the
same State— as, for instance, the Strait of Kertch ^
until the World War, and formerly the Bosphorus
and the Dardanelles ^ — ^foreign vessels can be excluded
therefrom.
§ 196. The rule that foreign merchantmen must be The
allowed inofEensive passage through territorial straits go^^
without any dues and tolls whatever, had one excep- ^"®^-
tion until the year 1857. From time immemorial,
Denmark had not allowed foreign vessels the passage
through the two Belts and the Sound, a narrow strait
which divides Denmark from Sweden and connects the
Kattegat with the Baltic, without payment of a toll,
the so-called Sound Dues.* Whereas in former cen-
^ As, for instance, the Straits of situation in Russia, it is impossible
Magellan. These straits were neutra- to state the present position of this
Used in 1881 — see below, § 568, and strait,
vol. ii. § 72 — by a treaty between ' See below, § 197.
Chili and Argentina. See Abribat, * See the details, which have
Le Detroit de Magellan au Point de historical interest only, in Twiss, i.
Vue iniemational (1902) ; Nys, i. pp. § 188 ; Phillimore, ir§ 179 ; Wharton,
511-515, and Moore, i. § 134. i. § 29, and Soberer, Der SundzoU
> See below, § 252. Owing to the (1845).
350
STATE TERRITORY
turies these dues were not opposed, they were not con-
sidered any longer admissible as soon as the principle
of free navigation on the sea became generally recognised,
but Denmark nevertheless insisted upon the dues. In
1857, however, an arrangement ^ was completed between
the maritime Powers of Europe and Denmark by which
the Sound Dues were abohshed against a heavy indem-
nity paid by the signatory States to Denmark. And in
the same year the United States entered into a con-
vention ^ with Denmark for the free passage of their
vessels, and Ukewise paid an indemnity. With these
dues has disappeared the last witness of former times
when free navigation on the sea was not universally
recognised.
The Bos- § 197. The Bosphorus and Dardanelles, the two terri-
and'^Dar- torial straits which connect the Black Sea with the
daneiies. Mediterranean, must be specially mentioned.^ So long as
the Black Sea was entirely enclosed by Turkish territory,
and was therefore a portion of this territory, Turkey
could exclude * foreign vessels from the Bosphorus and
the Dardanelles altogether, unless prevented by special
treaties. But when in the eighteenth century Russia
became a littoral State of the Black Sea, and the latter,
therefore, ceased to be entirely a territorial sea, Turkey,
by several treaties with foreign Powers, conceded free
navigation through the Bosphorus and the Dardanelles to
foreign merchantmen. But she always upheld the rule
that foreign men-of-war should be excluded from these
straits ; and by Article 1 of the Convention of London
of July 13, 1841, between Turkey, Great Britain, Austria,
» The Treaty of Copenhagen of (1885), pp. 224-226; Perels, p. 29;
March 14, 1857. See Martens, Goriainon, Le Bosphore et lea Oar-
N.B.G., xvi. part ii. p. 345. daneiies (1910); Daaoorra, La Qtie»-
^ Convention of Washington of ticm du Boephore et de» Dardandles
Aprilll,1857. SeeMartens,iV.fl.G'., (1915) ; PhilUpson and Buxton, TAe
xvii. part i. p. 210. Question of the Bosphorus and the
' See Holland, The European Dardanelles (1919).
Concert in the Eastern Question * See above, § 195,
STEAITS 351
France, Prussia, and Kussia, this rule was definitely
accepted. Article 10 of the Peace Treaty of Paris of
1856 and the Convention No. 1 annexed to this treaty,
and, further. Article 2 of the Treaty of London, 1871,
again confirmed the rule, and all those Powers which
were not parties to these treaties nevertheless submitted
to it.i According to the Treaty of London of 1871,
however, the Porte could open the straits in time of
peace to the men-of-war of friendly and alhed Powers
for the purpose, if necessary, of securing the execution
of the stipulations of the Peace Treaty of Paris of 1856.
On the whole, the rule was in practice upheld by
Turkey. Foreign hght public vessels in the service of
foreign diplomatic envoys at Constantinople could be
admitted by the provisions of the Peace Treaty of Paris
of 1856 ; and on several occasions when Turkey
admitted a foreign man-of-war carrjang a foreign
monarch on a visit to Constantinople, there was no
opposition by the Powers.^ But there were cases when
foreign warships passed the straits in violation of the
rule. For instance, in 1847, Turkey permitted two
French men-of-war to pass the straits for the purpose
of towing some corn vessels from the Black Sea to
France ; the Powers protested, although Turkey had
given permission on humanitarian grounds alone. Again,
in 1858, the United States Government, which had
obtained permission to send a light war vessel for the
service of the American Legation at Constantinople,
sent the Wabash, a large frigate armed with fifty guns ;
the other Powers protested, whereupon the Wabash
departed. Further, in 1902, Turkey allowed four
Kussian torpedo destroyers to pass through the straits
' The United States, although she pp. 79 and 80, and Moore, i. § 134,
actually aoquieseed in the exclusion pp. 666-668. See also Roxburgh,
of her men-of-war, seemed not to con- Intematkmal Conventions and Third
sider herself bound by the Conven- States (1917), p. 29.
tion of London, to which she was not
a party. See Wharton, i. § 29, » See Perels, p. 30.
352
STATE TERRITORY
on condition that these vessels should be disarmed and
sail under the Russian commercial flag ; and Great
Britain protested. When, in 1904, during the Russo-
Japanese War, Peierburg and Smolensk, two vessels
belonging to the Russian volunteer fleet in the Black
Sea, were allowed to pass through to the Mediterranean,
no protest was raised, because it was impossible to
assume that these vessels, which were fljang the Russian
commercial flag, would later on convert themselves
into men-of-war by hoisting the Russian war flag.^
But now the straits are about to be opened to men-
of-war as well as merchantmen of all nations, both in
peace and war. The Treaty of Peace with Turkey is to
establish for the zone of the straits a regime resembling
the Suez Canal regime,^ and to set up an International
Commission of Control.
IX
THE AIR AND AERIAL NAVIGATION
Holtzendorff, ii. p. 230— Lawrence, § 73— Bonflls, Nos. 531^-531'— DespagBet,
Nos. 433 Us and 433 ier— M^rignhao, ii. pp. 398-410— Nys, i. pp. 568-
587 — Griinwald, Das Luftachiff, etc. (1908) — Meili, I?as Luftschiff, etc.
(1908) — Meurer, Lufischiffahrtsrecht (1909) — Meyer, Die ErscMiessung
det Luftrav/ms in ihren rechUichen Folgen (1909) — Magnani, II Diritto
suUo Spazio aereo e V Aeronomtica (1909) — Leech, The Jurisprudence of
the Air (1910), a reprint from the Journal of the Royai Artillery, vol.
xxxvii. — Lyoklama k Nijeholt, Air Sovereignty (1910) — Hazeltine,
The Law of the Air (1911) — Bielenberg, Die Freiheit des Luftraums
(1911) — Catellani, II Diritto aereo (1911) (French translation published
in Paris (1912)) — Sperl, Die Luftadiiffahrt, etc. (1911) — Loubeyre,
Les Prineipes du Droit o^era (1911) — Thibaut, Le Domaine airien
des ^tats en Temps de Paix (1911) — D'Hooghe, Droit a^rien (1912)
— Bellenger, La Guerre airienne et le Droit inlemationaZ (1912) —
Richards, Sovereignty over the Air (1912) — Reports of the Civil Aerial
Transport Committee (1918), Cd. 9218 — Spaight, Aircraft in Peace
and the Law (1919) — Fauohille in Annuaire, xix. (1902), pp. 19-114,
xxiv. (1911), pp. 23-126, and in R.G., viii. (1901), pp. 414-485,
xvii. (1910), pp. 55-62 — Zitelmann in the Zeitachrift fur intemaiionaies
* See below, vol. ii. § 84. During Brealau, to pass through the straits
the World War Turkey, before she to Constantinople,
became a belligerent, permitted two
German cruisers, Goeben and the ' See above, § 183.
THE AIR AND AERIAL NAVIGATION 353
privat- und offentUchea Recht, xix. (1909), pp. 458-496 — Baldwin and
Kuhm in A.J., iv. (1910), pp. 95-108, 109-132— Baldwin in Z.V., v.
(1911), pp. 394-399— Sperl in E.G., xviii. (1911), pp. 473-491— Hershey
in A. J., vi. (1912), pp. 381-388 — Stael-Holakin in La Vie mtemationale,
ii. (1912), pp. 343-370— Lee in ^.,/., vii. (1913), pp. 470-496.
§ 197a. The rapid development of aerial navigation, Questions
a few years before the World War, introduced many™eri^i^^
new problems for international jurists. In particular, Naviga-
it became for the first time important to determine before the
whether the relationship between the maritime belt and war!*^
the open sea should have a counterpart in the space of
the atmosphere, (a distinction being thus drawn between
a zone of a certain height in which the territorial State
could exercise sovereignty, and the atmosphere beyond
that height which was to be considered free Uke the
open sea), or whether the territorial State was to be
regarded as exercising sovereignty over the atmosphere
to an unbounded height. If the latter alternative was
to be accepted, a further question arose whether the
territorial State was to have power to prevent altogether
the passage of foreign aircraft, or merely to enact rules
with which they would have to comply.
The author of this book thought that it would pro-
bably be best for the States in conference to recognise
the sovereignty of the territorial State over the whole
space of atmosphere above it to an unhmited height,
but to adopt rules giving to foreign States the right to
demand that their private (but not public !) aircraft
should be allowed to pass through it, provided that
they compHed with the regulations.
An international conference had assembled ab Paris in
1910 to make rules for aerial navigation ; but it was with-
out result. The Institute of International Law took up
the question, and at its meeting at Madrid in 1911
adopted some suggested rules.^ For regulating air
traffic over the United Kingdom and its territorial waters,
' See Annuaire, xjciv. (1911), p. 346.
VOL. I. Z
354 STATE TERRITORy
an Aerial Navigation Act was passed in 1911,^ and
amended in 1913.2 Under these acts, and the rules
made in pursuance of them,^ foreign naval or mihtary
aircraft were prohibited from passing over, or landing
within, the United Kingdom except on the express
invitation, or with the express permission, of the
Government. Aircraft of other descriptions coming
from abroad had to comply with certain rules as to
clearances, cargoes and place of landing. In certain
areas flying was entirely prohibited.
Aerial § 1976. With the outbreak of the World War aerial
tion in^he navigation for civihans was suspended. But remarkable
United progress was made in the construction and equipment
from 1914 of aiTcraft for the forces during the period of hostilities.
Present ^^^ '^^ry Valuable experience was gained of the condi-
Time. tions of navigation ; and so it was desirable to prepare
new rules to be available at the end of the fighting.
Accordingly, a Civil Aerial Transport Committee was
appointed by the British Government on May 22, 1917,
to consider what steps should be taken ' with a view to
the development and regulation after the war of avia-
tion for civil and commercial purposes from a domestic
and imperial and an international standpoint.' This
Committee made its final report on May 11, 1918.* After
the armistices, on February 27, 1919,^ a short amending
act was passed, and on May 1, 1919, when civihan flying
was generally resumed, an elaborate code of rules,
made pursuant to the Air Navigation Acts, 1911-1919,
came into force.®
Theinter- § 197c. These rules supphed material for the Conven-
IVcon- tion for the Regulation of Aerial Navigation,' which was
vention. drawn up at the Peace Conference of 1919, and signed
» 1 & 2 Geo. V. o. 4. ■> See London Gazette, April 30,
' 2 & 3 Geo. V. o. 22. 1919. A new bill, designed to replace
' S. R. and O. (1913), Nos. 228 and the existing Acts and to give effect to
243. the International Air Convention, is
• Od. 9218. now (May 1920) before Parliament.
' 9 Geo. V. 0. 3. ' Cmd. 670.
THE AIR AND AERIAL NAVIGATION 355
on October 13, 1919. The five Principal Allied and
Associated Powers, and twenty-two other Allied Powers,
were named as parties ; but only fifteen of them signed
it, namely, the British Empire, France, Italy, Belgium,
BoHvia, Brazil, China, Cuba, Ecuador, Panama, Poland,
Portugal, Roumania, Siam, and Uruguay.
The convention appUes to peace only, and does not
afiect the freedom of action of the parties in war, either
as belligerents or neutrals (Article 38). Its principal
provisions are as follows :
(a) Sovereignty over the Air
The parties have agreed, as suggested some years ago
by the author, to apply to the space of the atmosphere
rules similar to those in existence for the maritime belt.
They recognise that every State has complete and exclu-
sive sovereignty over the air space above its territory
and territorial waters, but each party imdertakes to
accord in time of peace freedom of innocent passage to
the private aircraft of other parties so long as they com-
ply with the rules made by, or imder the authority of,
the convention. Any regulations laid down by a party
in accordance with the convention as to the admission
of such aircraft are to be appHed without distinction
of nationaUty.^ Each contracting State, however, re-
serves the right to prohibit aU private flpng over certain
areas for miKtary reasons or for public safety.^
(b) Nationality of Aircraft
Aircraft must be registered in the State of which their
owners are nationals, and in that State alone. Their
nationaUty is that of the State in which they are regis-
tered, and they must bear their nationality and regis-
tration marks, and the name and residence of their
owner, when engaged in international navigation. The
' Articles 1-2. » Artiole 3.
356
STATE TERRITORY
contracting States are to exchange periodically copies
of entries in their registers, and to transmit them to the
International Conmiission for Air Navigation, which is
to be constituted under the direction of the League of
Nations.!
(c) International Navigation by Private Aircraft
Every private aircraft engaged in international naviga-
tion must carry : (1) a certificate of registration ; (2) a
certificate of airworthiness from the State to which it
belongs ; (3) certificates of competency and Ucences in
respect of each member of the operating crew; (4) a Kst of
passengers (if any) ; (5) biUs of lading and manifest for
freight (if any); (6) log books; (7) special licences for wire-
less equipment and for the wireless operators (if any).
Every aircraft used in public transport and capable of
carrying ten or more persons must eventually be fitted
with wireless apparatus so licensed.^ Private aircraft
exercising their right of innocent passage across another
State without landing must follow the route prescribed by
the State flown over, and must land even against their wiU
if ordered to do so. Private aircraft intending to land in
another State must land at the aerodromes appointed
for the purpose, if the regulations of the State concerned
so require. But except for this provision, every aero-
drome in a contracting State which upon payment of
charges is open to pubhc use by its national aircraft is
likewise to be open to the aircraft of all other contract-
ing States. The establishment of international air-
ways is to be subject to the consent of the States flown
over.^ Cabotage * is reserved for aircraft of the terri-
torial State, Article 16 providing that it shall have the
right to reserve to its national aircraft the ' carriage of
persons and goods for hire between two points on its
1 Articles 5-10, Article 34. ' Article 15, Article 24.
* Articles 11-14, Article 19. * See below, § 579,
THE AIR AND AERIAL NAVIGATION 357
territory.' No private aircraft engaged in international
flying is to carry explosives or munitions, under any
circumstances, or photographic apparatus except so
far as permitted by the State concerned, or any other
article the transport of which is forbidden by a State
to its own nationals and foreigners ahke on grounds of
pubHc safety.^ With regard to aircraft wrecked at sea,
the rules applicable to salvage of ships will apply, in
the absence of agreement to the contrary ; ^ aircraft of
other parties are to enjoy the measures of assistance
for landing accorded to national air vessels, particularly
in case of distress.^
(d) Jurisdiction over Private Aircraft
The authorities of the territorial State have the right
to visit every foreign private aircraft, and verify its
documents, upon landing and upon departure. Each
contracting State undertakes to adopt measures to ensure
that every aircraft flying over its territory, and every
aircraft bearing its nationahty marks, wherever it may
be, comphes with the rules of navigation formulated by
the convention. It also' undertakes to ensure the
prosecution and punishment of all persons contravening
them. An aircraft passing through the territory of
a contracting State, or making such landings or
stoppages as are reasonably necessary for the purpose
of such transit, is not hable to seizure on the ground
of infringement of patent, design or model, provided
that security is deposited. The amount of the security
is to be fixed, in default of amicable agreement, by the
competent authority of the State concerned with the
least possible delay.*
The first draft of the convention had further laid
down general rules for jurisdiction over private aircraft ;
^ Artiolea 26-29. " Article 22.
« See below, §271 ; and Article 23. » Articles 21, 25, 18.
358 STATE TEREITOR"-.
but objection was taken to them, and they were
deleted. Consequently, all questions of jurisdiction
which are not covered by the stipulations just mentioned
must be settled by reference to the general principles of
International Law. (See above, §§ 123-124, 143-145.)
(e) State Aircraft
State aircraft are of two classes : (1) military, i.e.
those ' commanded by a person in military service
detailed for the purpose,' and (2) rum-military, but ex-
clusively employed in State service, such as posts,
customs and pohce.
(1) Military aircraft may not fly over, or land in, the
territory of another party without special authorisation ;
but having obtained such authorisation, they are to
enjoy in principle, in the absence of special stipulation,
the privileges of exterritoriality customarily accorded to
foreign war vessels. ^ On the other hand, a military
aircraft landing on the territory of another party imder
any other circumstances can claim no such privileges.
(2) Non-military. With regard to poHce and customs
aircraft, the States are to arrange among themselves
the conditions upon which they may cross the frontier.
Such aircraft are not in any case to enjoy exterritoriaUty.
AU other non-mihtary State aircraft are to be treated
as private aircraft.^
(f ) The Internaiional Air Commission
The convention estabhshes an International Commis-
sion for Air Navigation as a permanent commission
under the direction of the League of Nations. Its
principal duties are to receive or make proposals for
amending the convention, to amend the technical
annexes, to carry out duties assigned to it by the conven-
» § 450. " Articles 30-33.
THE AIB AND AERIAL NAVIGATION 359
tion, to coUect and disseminate information bearing upon
air navigation, to publish, air maps, and to give an
opinion on questions submitted to it for examination.^
(g) Ame'ndmenis to the Convention
While the International Air Commission can, by the
requisite majority, itseK amend the annexes, it cannot
do more than recommend an amendment of the con-
vention. Every proposed amendment must, however, be
considered by it, and cannot be recommended for adop-
tion unless it receives at least two-thirds of all the votes
which coidd be cast if all the States were represented.
Even if so carried, it cannot become efEective unless
formally adopted by the parties to the convention.^
(h) Disputes
Disagreements as to the interpretation of the con-
vention are to be referred to the Permanent Court of
International Justice,^ and, pending its establishment,
to arbitration. But disputes as to a regulation in any
of the annexes are to be decided by the International
Air Commission, acting by a majority.^
(i) Gammg into Force, Accession and Withdrawal
The convention is to come into force for each
signatory State,® in respect of other States which have
already ratified, forty days from the deposit of its
ratification. States neutral in the World War may
accede without restriction ; other States only upon the
terms of Article 42. Any State may withdraw from
it by denunciation, but no such denunciation may be
made before January 1, 1922. Denunciation is not to
take effect until at least a year after it has been given.®
' Article 34. ' The British self-governing Dom-
' Article 34 inions and India are deemed to be
States for the purposes of this Con-
' See below, § 4766. vention : Article 40.
* Article 37. * Articles 40-43.
360
STATE TERRITORY
BOITNDAEIES OF STATE TERRTTOBY
Grotius, iL o. 3, §§ 16-18— Vattel, i. § 266— Hall, § 38— Westlake, i pp. 144-
145— Twiss, i. ^ 147-148— Taylor, § 251— Moore, t §§ 154-162— Hershey,
Nos. 162-165— Blnntschli, §§ 296-302— Hartmann, § 59— HefiEter, § 66—
Holtzendorff in HoUiendorf, it pp. 232-239— Gareis, § 19— Liszt, § 9—
tnimami, § 91— Bonffls, Noe. 486-489— Despagnet, No. 377— Pradier-
Foddr^, ii Nos. 759-777— M^rignhao, u. p. 358— Nys, i. pp. 446-472—
Bivier, i. § 11— Calvo, i. § 342— Fiore, u. Nos. 799-806, and Code, Nos.
1045-1054 — Martens, i. § 89 — Lord Onrzou of Kedleston, Prantiera
(Romanes lecture of 1907) — ^Holdich, Pditiad Frontiers and Boundary
Making (1915) — Schnlthess, Dag intematitmaU Wasserredu (1915) —
Faweett, Frontiers (1918).
Natural § 198. Boundaries of State territory are the imagi-
ficiai ^ nary lines on the surface of the earth which separate
^^ the territory of one State from that of another, or from
unappropriated territory, or from the open sea. The
course of the boundary hnes may or may not be indi-
cated by boundary signs. These signs may be natural
or artificial, and one speaks, therefore, of natural in
contradistinction to artificial boundaries. Natural boun-
daries may consist of water, a range of rocks or moun-
tains, deserts, forests, and the hke. Artificial boimdaries
are such signs as have been purposely put up to indicate
the way of the imaginary boundary line. They may
consist of posts, stones, bars, walls,^ trenches, roads,
canals, buoys in water, and the like. It must, however,
be borne in mind that the distinction between artificial
and natural boundaries is not sharp, in so far as some
natural boundaries can be artificially created. Thus a
forest may be planted, and a desert may be created, as
was the frequent practice of the Romans of antiquity,
for the purpose of marking the frontier.^
* The Romans of antiquity very ' The usual practice adopted by the
often constructed boundary waUs, Peace Conference In 1919 with regard
and the Chinese Wall may also be to boundaries was to specify them
cited as an example. in words, so far as was practicable.
BOUNDARIES OF STATE TERRITORY 361
§ 199. Natural boundaries consisting of water must Boundaiy
be specially discussed on account of the different kinds * ""
of boundary waters. Such kinds are rivers, lakes, land-
locked seas, and the maritime belt.
(1) Boundary rivers ^ are such rivers as separate two
different States from each other.^ If such river is not
navigable, the imaginary boundary line as a rule runs
down the middle of the river,^ following aU turnings of
the border hne of both banks of the river. If navigable,
the boundary line as a rule runs through the middle of
the so-called Thalweg, that is, the mid-channel of the
river,* and this general rule was adopted by the Treaties
of Peace, except in special cases. ^ But it is possible that
the boundary line is the border line of the river, 'so that
the whole bed belongs to one of the riparian States only.®
This is an exceptional case created by immemorial pos-
session, by treaty, or by the fact that a State has occupied
the lands on one side of a river at a time prior to the
occupation of the lands on the other side by some other
State.' And it must be remembered that, since a river
sometimes changes its course more or less, the boundary
line is thereby also altered.^ In case a bridge is built
over a boundary river, the boundary hne runs, failing
and leave the actual delimitation to 'Or its principal arm, if it has
Boundary Commissions, which were more than one.
to fix the frontier line on the spot * Or its principal channel, if it has
in conformity with the provisions more than one.
of the treaties. Maps were used ' ^.3., by the Treaty of Peace with
to illustrate the boundaries ; but in Germany, Article 30.
case of a discrepancy between the ' See above, § 175.
text of a treaty and a map, the ' See Twiss, i. §§ 147 and 148, and
text was to prevaiL Westlake, i. p. 145 ; Hyde in A.J.,
» See Huber in Z. V., i. (1906), pp. § vi. (1912), p 905, and Sohulthess,
29-52 and 159-217; Hyde in ^. J., "^i "^Ji'iPP .J -"• ,
vi. (1912), pp. 901-909, and Schult- ^ 'Unless it is otherwise provided
hess, op. cit., pp. 8-16 and 19-24. by treaty (see, for example. Treaty
"^ of Peace with Germany, Article 30).
' This case is not to be confounded Moreover, if a boundary river leaves
with the other, in which a river runs its old bed and forms a new one,
through the lands of two different the boundary line remains in its old
States. In this latter case the place. See below, § 235, and SUUe
boundary line runs across the of Arkamas v. State of Tennestee,
river. (1918) 246 U.S. 158.
362
STATE TERRITORY
special treaty arrangements,^ through the middle of the
bridge.^
(2) Boundary lakes and land-locked seas are such as
separate the lands of two or more different States from
each other. The boundary line runs through the middle
of these lakes and seas, but as a rule special treaties
portion off such lakes and seas between riparian States.^
(3) The boundary Hne of the maritime belt is, accord-
ing to details given above (§ 186), uncertain, since no
unanimity prevails with regard to the width of the belt.
It is, however, certain that the boundary Une runs not
nearer to the shore than three miles, or one marine
league, from the Iqw-water mark.
(4) In a narrow strait separating the lands of two
different States the boundary line runs, either thxou^
the middle, or through the mid-channel,* unless special
treaties make different arrangements.
Boundary § 200. Boundary mountains or hills are such natural
tai°ns° elevations from the common level of the ground; as
separate the territories of two or more States from each
other. Failing special treaty arrangements, the boun-
dary line runs on the mountain ridge along with the
watershed. But it is quite possible that boundary
mountains belong wholly to one of the States which
they separate.^
Boundary § 201. Boundary Unes are, for many reasoixs, of such
®P" ®^- vital importance, that disputes relating thereto are
inevitably very frequent and have often led to war.
During the nineteenth century, however, a tendency
began to prevail to settle such disputes peaceably. The
simplest way in which this can be done is always by
' For an example where it is other- boundary rivers and through the
wise provided, see Treaty of Peace abandoned beds of such rivers, see
with Germany, Article 66, under below, §§ 234 and 235.
which existing bridges across the ' See above, § 179, and Sohulthess,
Rhine within the limits of Alsace- op. cit., pp. 16-18.
Lorraine are to belong to France. * See Twias, i. §§ 183 and 184, and
• As regards the boundary lines above, § 194.
running through islands rising in ' See Fiore, ii. No. 800.
BOUNDARIES OF STATE TERRITORY 363
a boundary treaty, provided the parties can come to
terms.^ In other cases arbitration can settle the matter,
as, for instance, in the Alaska Boundary dispute between
Great Britain (representing Canada) and the United
States, settled in 1903.^ Sometimes International Com-
missions are specially appointed to settle the boiiJadary
lines. In this way the boundary hues between Turkey,
Bulgaria, Serbia, Montenegro, and Roumania were
settled after the BerHn Congress of 1878. After the
World War Boundary Conamissions were constituted by
the Treaties of Peace to settle many frontiers.^ It some-
times happens that the States concerned, instead of
settHng the boundary Une, keep a strip of land between
their territories under their joint tenure and ad-
ministration, so that a so-called condominium comes
into existence, as was done in the case of Moresnet
(Kelmis) on the Prusso-Belgian frontier prior to the
World War.*
§ 202. Whereas the term ' natural boundaries ' in the Natural
theory and practice of the Law of Nations means natural ^"^es
signs which indicate the course of boundary lines, the '^™"
. . . . , polittco.
same term is used politically® in various different
meanings. Thus the French often speak of the river
Rhine as their ' natural ' boundary, as the ItaUans do
of the Alps. Thus, further, the zones within which the
language of a nation is spoken are frequently termed
that nation's ' natural ' boundary. Again, the Une
enclosing such parts of the land as afford great facihties
for defence against an attack is often called the ' natural '
boundary of a State, whether or not these parts belong
' A good example of such a Martens, N.R.G., 3rd Ser. iv. p.
boundary treaty is that between 191.
Great Britain and the United States 2 See Balch, The Alaska Frontier
of America respecting the demarca- (1903).
tion of the international boundary 3 g^g ^^^ § ^gg „ 2.
between the United States and the . „ , - ,-,,,,
Dominion of Canada, signed at ' See above, § 171 (1).
Washington on April 11, 1908. See ' See Rivier, i. p. 166.
364
STATE TEERITORY
to the territory of the respective State. But such
conceptions are political, and are outside the domain
of International Law.
XI
STATE SERVITUDES
Vattel, ii. §89— Hall, § 42*— Westlake, i. p. 61— PhilUmore, i. §§ 281-283—
Twiss, i. § 245— Taylor, § 252— Moore, i. §§ 163-168, ii. § 177— Hershey,
Nos. 166-168— Bluntschli, §§ 353-359— Hartmaim, § 62— Heffter, § 43—
Holtzendorff in Soltzendorff, ii. pp. 242-252— Gareis, § 71— Liszt, §§ 8
and 19— tnimann, § 99— Bonfils, Nos. 340-344^Despagnet, Nos. 190-
192— M6rignhao, ii. pp. 366-368 — Pradier-FodArfe, u. Nos. 834-845,
1038- Rivier, i. pp. 296-303— Nys, ii. pp. 319-330— Calvo, iii. § 1583—
Kore, i. § 380, and Code, Nos. 1100-1102— Martens, i. §§ 94-95— Clauss,
Die Lehre von den Staattdienstbarkeiten (1894) — Fabres, Des Servitudes
dam le Droit international (1901) — Hollatz, Begriffund Weaen der Staats-
servitvien (1909) — Labrousse, Des Servitudes en Droit iTUemational public
(1911)— Nys in R.I., 2nd Ser. vii. (1905), pp. 118-125, and xiii. (1911),
pp. 314-323— Basdevant in E.G., xix. (1912), pp. 512-521— Potter in
A.J., ix. (1915), pp. 627-641.
Concep- § 203. State servitudes are those exceptional restric-
s^°Ser- tions made by treaty on the territorial supremacy of a
vitudes. State by which a part or the whole of its territory is
in a limited way made perpetually to serve a certain
purpose or interest of another State. Thus a State
may by a convention be obUged to allow the passage
of troops of a neighbouring State, or may in the interest
of a neighbouring State be prevented from fortifying a
certain town near the frontier.
Servitudes must not be confounded ^ with those
general restrictions upon territorial supremacy which,
according to certain rules of the Law of Nations, concern
all States alike. These restrictions are named ' natural '
restrictions of territorial supremacy (servittUes juris
gentium naturales), in contradistinction to the conven-
' This is done, for instance, bj' Hall speaks of the right of inno-
Heffter (§ 43), Martens (§ 94), Nys cent use of territorial seas as a
(ii. pp. 320 ff.), and Hall (§ 42*); servitude.
STATE SERVITUDES . 365
tional restrictions (servitvtes juris gentium voluntariae)
wMch constitute the State servitudes in the technical
sense of the term. Thus, for instance, it is not a State
servitude, but a ' natural ' restriction on territorial
supremacy, that a State is obliged to admit the free
passage of foreign merchantmen through its territorial
maritime belt.
That State servitudes are of great importance, there
can be no doubt. The vast majority ^ of writers and
the practice of the States accept the conception of State
servitudes, although they do not agree upon its defini-
tion or extent, and are often divided as to whether a
particular restriction upon territorial supremacy is or is
not a State servitude. But it was rejected by the
Permanent Court of Arbitration at the Hague in the case
of the North Atlantic Coast Fisheries (1910) between
Great Britain and the United States,^ mainly upon three
grounds : (1) that a servitude in International Law
predicated an express grant of a sovereign right; (2)
that the doctrine of international servitudes originated
in the peculiar and now obsolete conditions prevailing
in the Holy Roman Empire ; (3) that, being little suited
to the principle of sovereignty which prevails in States
imder a constitutional Government and to the present
international relations of sovereign States, it had found
little, if any, support from modern pubhcists. It is
hardly to be expected that this opinion of the Court will
induce theory and practice to drop the conception of
State servitudes, which is of great value. It suitably
covers those restrictions on the territorial supremacy of
' The conception of State servi- 415-417 ; Richards in the Journal of
tudes is rejected by Bulmerinoq theSocietyofOomparcUive Legislation,
(§49), Gareia(§ 71), Liszt(§§ 8 and New Ser. xi. (1910), pp. 18-27;
19), jellinek [AUgemeine Staatalehre, Lansing in A. J., v. (1911), pp. 1-31 ;
p. 366). Baloh and Louter in R.I., 2nd Ser.
xiii. (1911), pp. 5-23, 131-157;
' See the official publication of the Drago and Basdevant in R.O., xix.
ease, pp. 115-116 ; Hogg in the Law (1912), pp. 5 and 421 ; Anderson in
Quarterly Review, xxvi. (1910), pp. A.J., vii. (1913), pp. 1-16.
366
STATE TERRITORY
the State by which a part or the whole of its territory is
in a limited way made perpetually to serve a certain
purpose or interest of another State. That it originated
in the pecuKar conditions of the Holy Roman Empire
does not make it unfit for the conditions of modern hfe
if its practical value can be demonstrated. Further,
the assertion that it is but little suited to the principle
of sovereignty which prevails in States under a con-
stitutional Government, and has, therefore, found little,
if any, support from modern publicists, does not agree
with the facts. Lastly, the statement that a servitude
in International Law predicated aa express grant of a
sovereign right, is not based on any "other authority
than the contention of the United States, which made
this unfounded statement in presenting her case before
the Tribunal. The fact is that a State servitude,
although to a certain degree restricting the sovereignty
(territorial supremacy) of the State concerned, does not
confer a sovereign right upon the State in favour of
which it is established, any more than does any other
restriction upon sovereignty.^
Subjeota § 204. Subjects of State servitudes are States only
Servi^ ^ and exclusively, since State servitudes can exist between
tudes. States only {temtorivmdominans and territarium serviens) .
Formerly some writers ^ maintained that private indi-
viduals and corporations were able to acquire a State
servitude ; but nowadays it is agreed that this is not
possible, since the Law of Nations is a law between
States only and exclusively. Whatever rights may be
granted by a State to foreign individuals and corpora-
tions, such rights can never constitute State servitudes.
On the other hand, every State can acquire and grant
State servitudes, although some States may, in con-
» See below, § 206 (1). The exiat- pp. 858-860, 907-913).
enoe of State aervitudes was reoog- ^ See, for instance, Bluntschli,
nised by the Cologne Court of § 353 ; HefFter, § 43.
Appeal in 1914 (see A.J., viii. (1914),
STATE SERVITUDES 367
sequence of their particular position within the Family
of Nations, be prevented from acquiring or granting
some specialkind or another of State servitudes. Thus
a neutraUsed State is in many points hampered in regard
to acquiring and granting State servitudes, because it
has to avoid everything that could drag it indirectly into
war. Thus, further, half sovereign and part sovereign
States may not be able to acquire and to grant certain
State servitudes on account of their dependence upon
their superior State. But apart from such exceptional
cases, even not-full sovereign States can acquire and
grant State servitudes, provided they have some inter-
national status.
§205. The object of State servitudes is always the object of
whole or a part of the territory of the State the terri- vitudeB.*"^
torial supremacy of which is restricted by any such
servitude. Since the territory of a State includes not
only the land, but also the rivers which water the land,
the maritime belt, the territorial subsoil, and the terri-
torial atmosphere, all these, as well as the service of the
land itself, can be an object of State serAdtudes. Thus
a State may have a perpetual right of admittance for its
subjects to the fishery in the maritime belt of another
State, or a right to lay telegraph cables through a
foreign maritime belt, or a right to make and use a
tunnel through a boimdary mountain, and the hke. Or
again, a State servitude might be created through a
State acquiring a perpetual right to send miUtary air-
craft through the territorial atmosphere of a neighbour-
ing State. It must, however, be emphasised that the
open sea can never be the object of a State servitude,
since it is no State's territory.
Since the object of State servitudes is the territory
of a State, all such restrictions upon the territorial
supremacy of a State as do not make a part or the whole
of its territory itself serve a purpose or an interest of
368
STATE TERRITORY
another State are not State servitudes. The territory
as the object is the mark of distinction between State
servitudes and other restrictions on the territorial
supremacy. Thus the perpetual restriction imposed
upon a State by a treaty not to keep mihtary, naval, or
air forces, or not to keep an army, navy, or air force ^
beyond a certain size, is certainly a restriction on terri-
torial supremacy, but is not, as some writers ^ maintain,
a State servitude, because it does not make the territory
of one State serve an interest of another. On the other
hand, when a State submits to a perpetual right enjoyed
by another State of passage of troops, or to the duty
not to fortify a certain town, region, place, or island,^ or
to the claim of another State for its subjects to be
allowed the fishery within the former's territorial belt,* —
* See, for example, Part V. of the
Treaties of Peace with Germany and
Austria.
' See, for instance, Bluntsohli,
§356.
' As to the Aland Islands in the
Baltic, see Article 32 of the Peace
Treaty of Paris, 1856, and the
annexed Convention of March 30,
1856 (Martens, N'.S.G., xv. pp. 780
and 788). See also below, § 522 ;
Waultrin in R.G., xiv. pp. 517-533 ;
and4./.,ii. (1908),p. 397. Astothe
coastal zone in Morocco, see Treaty
between France and Spain of
November 27, 1912, Article 6
(Marten's, N.R.O., 3rd Ser. vii. p.
323). As to the banks of the Rhine,
see Treaty of Peace with Germany,
Articles 42-44 and 180. As to
Heligoland, see ibid.. Article 115.
As to the coastal zone commanding
the passage into the Baltic, see ibid..
Article 195, and below, §568e. As
to Czeoho-Slovak territory on the
right bank of the Danube to the
south of Bratislava, see Treaty of
Peace with Austria, Article 56.
* Examples of such fishery servi-
tudes are : —
(a) The former French fishery
rights in Newfoundland, which were
based on Article 13 of the Treaty of
Utrecht, 1713, and on the Treaty of
Versailles, 1783. See the details
regarding the Newfoundland Fishery
Dispute, in Phillimore, i. § 195 ;
Clauss, op. cit., pp. 17-31; Geffeken
in E.I., xxii. p. 217; Brodhurst in
the Law Magazine and Seview, xxiv.
p. 67. The French literature on the
question is quoted in Bonfils, No. 342,
n. 1. The dispute was settled by
France's renunciation of the privi-
leges due to her according to Article
13 of the Treaty of Utrecht, which
took place by Article 1 of the
Anglo-French Convention signed in
London on April 8, 1904 (see
Martens, N.B.O., 2nd Ser. xxxii.
p. 29). But France retains, accord-
ing to Article 2 of the latter con-
vention, the right of fishing for her
subjects in certain parts of the terri-
torial waters of Newfoundland,
(6) The fishery rights granted by
Great Britain to the United States
of America in certain parts of the
British North Atlantic Coast by
Article'! of the Treaty of 1818, which
gave rise to disputes extending over
a long period. The " dispute was
settled by an award of the Hague
Permanent Court of Arbitration
given in September 1910, in which
(see above, § 203) the Court refused
to recognise the conception of State
servitudes.
STATE SERVITUBES 369
in all these and the like ^ cases the territorial supremacy
of a State is ih such a way restricted that a part or the
whole of its territory is made to serve the interest of
another State, and such restrictions are therefore State
servitudes.^
§ 206. Accordrug to different qualities different kinds Diflferent
of State servitudes must be distinguished. stTte^Ser-
(1) Affirmative, active, or positive, are those servi- ^i^^deB.
tudes which give the right to a State to perform certaia
acts on the territory of another State, such as to build
and work a railway, to establish a custom-house, to
let an armed force pass through a certain territory
{d/roit d'eta'pe), or to keep troops in a certain fortress,
to use a port or an island as a coaling station; and the
like. Also affirmative are those servitudes which give
the right to a State to demand that its subjects shall be
allowed to perform certain acts on the territory of
another State, such as to fish within certain territorial
waters, etc.^
(2) Negative, are such servitudes as give a right to
a State to demand of another State that the latter shall
abstain from exercising its territorial supremacy in
certain ways. Thus a State can have a right to demand
' Phillimore (i. § 283) quotes two case a State servitude is indeed
interesting State servitudes which created.
belong to the past. According to ' The contention of the United
Articles 4 and 10 of the Treaty of States, adopted by the Hague Arbi-
Utrecht, 1713, France was, in the tration Tribunal in 1910 in the
interest of Great Britain, not to North Atlantic Coast Fisheries case
allow the Stuart Pretender to reside (see above, § 203), that a State aervi-
on French territory, and Great tude must confer a sovereign right
Britain was, in the interest of Spain, upon the State in favour of which it
not to allow Moors and Jews to is established, is untenable. The
reside in Gibraltar. sovereignty of the State which grants
' The controverted question a servitude to another State is
whether neutralisation of a State indeed thereby somewhat restricted,
creates a State servitude is answered but no sovereign right accrues
by Clauss, op. cit. (p. 167), in the in consequence to the grantee. For
affirmative, but by tJUmann (§ 99), this reason, in the case of a fishery
correctly, I think, in the negative. servitude, the grantee is not entitled
But a distinction must be drawn to demand that its consent shbuld
between neutralisation of a whole be aaked for general regulations for
State and neutralisation of certain the preservation of the fisheries, or
parts of a State. In the latter for customs purposes and the like,
VOL. I. 2 A
370
STATE TEREITOEY
that a neighbouring State shall not fortify certain towns
near the frontier, or that another State shall not allow
foreign men-of-war in a certain harbour.^
(3) Mihtary, are those State servitudes which are
acquired for mihtary purposes, such as the right to keep
troops in a foreign fortress, or to let an armed force pass
through foreign territory, or to demand that a town on
foreign territory shaU not be fortified, and the like.
(4) Economic, are those servitudes which are ac-
quired for the purpose of commercial interests, trafl&c,
and intercourse in general, such as the right of fisheries
in foreign territorial waters, to build a railway on or
lay a telegraph cable through foreign territory, and the
Hke.
Validity § 207. Siuce State servitudes, in contradistinction to
Servi- pcrsonal rights (rights in personam), are rights inherent
tudes. ^Q ^jj^g object with which they are connected (rights in
rem), they remain vaUd and may be exercised however
the ownership o^ the territory to which they apply
may change. Therefore, if, after the creation of a State
servitude, the part of the territory afiected comes by
subjugation or cession vmder the territorial supremacy
of another State, such servitude renaains in force. Thus,
when the Alsatian town of Hiiningen became German in
1871, and again, when it became French in 1918, the
State servitude created by the Peace Treaty of Paris,
1815, that Hiiningen should, in the interest of the Swiss
canton of Basle, never be fortified, was not extingui^ed.^
Thus, further, when in 1860 the former Sardinian pro-
vinces of Chablais and Faucigny, and the whole of the
territory of Savoy to the north of Ugine, became French,
the State servitude created by Article 92 of the Act of the
Vienna Congress, 1815, that Switzerland should have
1 Affirmative State servitudes con- nequit has been adopted by the Law
sist in patiendo, negative servitudes of Nations.
in non Jaciendo. The rule of Roman ^ Details in Clauss, op. cit., pp.
Law lervitiit in /aciendo comiitere 15-17.
STATE SERVITUDES 371
temporajrily during war the right to locate troops in
these provinces, was not extinguished.^
It is a moot point whether military State servitudes
can be exercised in time of war by a beUigerent if the
State with whose territory they are connected remains
neutral. Must such State, for the purpose of uphold-
ing its neutrahty, prevent the beUigerent from exercising
the respective servitude — for instance, the right of
passage of troops ? ^ There ought to be no doubt that
the answer must be in the affirmative.
§ 208. State servitudes are extinguished by agree- Extino-
ment between the States concerned, or by express org^^te"*
tacit ^ renunciation on the part of the State in whose Servi-
» . tudes.
mterest they were created. They are not, according to
the correct opinion, extinguished by reason of the terri-
tory involved coming under the territorial supremacy
of another State. But it is difficult to imderstand why,
although State servitudes are called into existence
through treaties, it is sometimes maintained that the
clause rebus sic stantibus * cannot be applied in case
a vital change of circumstances makes the exercise
of a State servitude unbearable. It is a matter of
course that in such case the restricted State must
previously try to come to terms with the State which
is the subject of the servitude. But if an agreement
' Details in Clauss, op. cit., pp. 8-15. the abrogation of the stipulations
See also Trfeal, who, in U Annexion relating to this zone, whioh are and
dela SavoK en France (1913), asserted remain abrogated.'
that through the annexation of these ' This question became practical
provinces by France, their neutra- when in 1900, during the South
Usation had fallen to the ground. African War, Great Britain claimed.
Now, however, by Article 435 of the and Portugal was ready to grant,
Treaty of Peace with GSermany, the passage of troops through Portuguese
High Contracting Parties have de- territory in South Africa. See below,
clared that the provisions of Article vol. ii. g§ 306 and 323 ; Clauss,
92 of the Pinal Act of the Vienna op. cii., pp. 212-217; and Dumas in
Congress, and other provisions relat- R.O., xvi. (1909), pp. 289-316.
ing to the neutralised zone of Savoy, ' See Bluntschli, § 3596. The
are no longer consistent with present opposition of Clauss, op. cit. (p. 219),
conditions, and ' note the agreement and others to this sound statement
reached between the French Govern- of Bluntschli is not justified,
ment and the Swiss Government for ' See below, § 539.
372
STATE TEERITORY
cannot be arrived at on account of the unreasonableness
of the other party, the clause rebus sic stantihug may
well be resorted to.^
XII
MODES OF ACQUIRING STATE TERRITORY
Vattel, i. §§ 203-207— Hall, § 31— Westlake, i. pp. 86-118— Lawrence, §§ 74-
78— Phillimore, i. §§ 222-225— Twiss, i. §§ 113-139— HaUeok, i. p. 154—
Taylor, §§ 217-227— Wheaton, §§ 161-163— Blimtschli, §§ 278-295—
Hartmann, § 61 — HefiFfcer, § 69 — Holtzendorff in HoUzemdorff, ii. pp.
252-255— Gareis, § 70— Liszt, § 10— Ullmann, § 92— Bonfils, No. 532—
Despagnet, No. 378— Pradier-Fod6r6, ii. Nos. 781-783 — M^rignhac, ii.
pp. 410-413— Rivier, i. § 12— Nys, ii. pp. 1-4— Calvo, i. § 263— Fiore,
ii. Nos. 838-840 — Martens, i. § 90 — Heimbtirger, Der Erwerh der
Gebietshoheit (1888) — Jerusalem, Ueber volkerrechtliche Eruxrbggrimde
(1911).
Who can § 209. Sincc States only and exclusively ^ are sub-
^^^ jects of the Law of Nations, it is obvious that, as far as
Terntpry? ^j^g j^^ qI Nations is concerned. States ^ solely can
acquire State territory. But the acquisition of terri-
tory by an existing State and member of the Family of
Nations must not be confounded, first, with the founda-
tion of a new State, and, secondly, with the acquisition
by private individuals or corporations of territory and
of sovereignty over territory which hes outside the
dominion of the Law of Nations.
(1) Whenever a multitude of individuals, living on,
or entering into, a part of the surface of the globe which
does not belong to the territory of any member of the
Family of Nations, constitute themselves as a State
' See BluntsoMi, § 359c2 and acquiring more territory than it
Pradier-Fod6r^, ii. No. 845. Clauss, already owns, unless some treaty
op. cit. (p. 222), and otliers oppose arrangement precludes it from so
this sound statement likewise. doing. As regards the question
* ApartfromtheLeagueof Nations. whether a, neutralised State is, by
' There is no doubt that no full its neutralisation, prevented from
sovereign State is, as a rule, pre- acquiring territory, see above, § 96,
vented by the Law of Nations from and below, § 215.
MODES OF ACQUIRING STATE TERRITORY 373
and nation on that part of the globe, a new State comes
into existence. This State is not, by reason of its birth,
a member of the Family of Nations, The formation of
a new State is, as will be remembered from former
statements,^ a matter of fact, and not of law. It is
through recognition, which is a matter of law, that such
new State becomes a member of the Family of Nations
and a subject of International Law. As soon as recog-
nition is given, the new State's territory is recognised
as the territory of a subject of International Law, and
it matters not how this territory was acquired before
the recognition.
(2) Not essentially difierent is the case in which a
private individual or a corporation acquires land (to-
gether with sovereignty over it) in countries which are
not under the territorial supremacy of a member of the
Family of Nations. In all such cases acquisition is in
practice made either by occupation of hitherto unin-
habited land, for instance an island, or by cession from
a native tribe living on the land. Acquisition of terri-
tory and sovereignty thereon in such cases takes place
outeide the dominion of the Law of Nations, and the
rules of this law, therefore, caimot be applied. If the
individual or corporation which has mad^ the acquisi-
tion requires protection by the Law of Nations, he or it
must either declare a new State to be in existence and
ask for its recognition by the Powers, as in the case of
the former Congo Free State,^ or must ask a member
of the Family of Nations to acknowledge the acquisition
as having been made on its behalf.^
' See above, § 71. James Brooke is still recognised as
' See above, § 101. The case of sovereign.
Sir James Brooke, who acquired ' The matter is treated with great
in 1841 Sarawak, in North Borneo, lucidity by Heimburger, op. cit., pp.
and established an independent iA-Tl, who defends the opinion repre-
State there, of which he became sented in the text against Twiss
the sovereign, may also be cited. (i. Preface, p. x. ; also in R.I., xv.
Sarawak is under British protec- p. 547, and xvi. p. 237) and other
torate, but the successor of Sir writers. See also UUmann, § 93.
374
STATE TERRITORY
Former § 210. No Unanimity exists among writers on the
concern^ Law of Nations with regard to the modes of acquiring
iitiM of^" territory on the part of the members of the Family of
Territory. Nations. The topic owes its controversial character to
the fact that the conception of State territory has under-
gone a great change since the appearance of the science
of the Law of Nations. When Grotius created that
science, State territory used to be stiU, as in the Middle
Ages, more or less identified with the private property
of the monarch of the State. Grotius and his followers
appUed, therefore, the rules of Roman Law concerning
the acquisition of private property to the acquisition of
territory by States.^ As nowadays, as far as Inter-
national Law is concerned, every analogy to private
property has disappeared from the conception of State
territory, the acquisition of territory by a State can
mean nothing else than the acquisition of sovereignty
over such territory. It is obvious that under these
circumstances the rules of Roman Law concerning the
acquisition of private property can no longer be apphed.
Yet the fact that they have been appUed in the past
has left traces which can hardly be obhterated ; and
they need not be obhterated, since they contain a good
deal of truth in agreement with the actual facts. But
the different modes of acquiring territory must be taken
from the real practice of the States, and not from Roman
Law, although the latter's terminology and common-
sense basis may be made use of.
What § 211. States as hving organisms grow and decrease
AcqiSi° in territory. If the historical facts are taken into con-
Tereitory sideratiou, different reasons may be found to account
there are. for the exercise of sovereignty by a State over the
' See above, § 168. The dis- § 4, mentions it, but the oonse-
tinotion between imperium and quenoes thereof were nevertheless not
dominium in Seneoa,'B dictum: omnia deduced. (See Westlake, Papers,
rex imperio possidet, aingvXi dominio pp. 129-133, and Westlake, i. pp.
was well known, and Grotius, ii. o. 3, 86-90. )
MODES OF ACQUIRING STATE TERRITORY 375
different sections of its territory. One section may
have been ceded by another State, another section may
have come mto the possession of the owner in conse-
quence of accretion, a third through suhjtigati£)n, a
fourth through occmation of no State's land. As
regards a fifth section, a State may say that it has exer-
cised its sovereignty over the same for so long a period
that the fact of having had it in undisturbed possession is
a sufficient title of ownership. Accordingly, five modes
of acquiring territory may be distinguished, namely:
cession, occupation, accretion, subjugation, and prescrip-
tion. Most writers recognise these five modes. Some,
however, do not recognise prescription ; some assert that
accretion creates nothing else than a modification of the
territory of a State ; and some do not recognise subjuga-
tion at all, or declare it to be only a special case of occupa-
tion. It is for these reasons that some writers recognise
only two ar three ^ modes of acquiring territory. Be
that as it may, all modes, besides the five mentioned,
enumerated by some writers, are in fact not special
modes, but only special cases of cession.^ And what-
ever may be the value of the opinions of pubhcists,
80 much is certain that the practice of the States
recognises jcession, occupation, accretion, subjugation,
and prescription as distinct modes of acquiring territory.
§ 212. The modes of acquiring territory are correctly Original
divided according as the title they give is derived from the vati^*"
title of a prior owner State, or not. Cession is therefore a ^o*e^ .°*
derivative mode of acquisition, whereas occupation, ac- tion.
cretion, subjugation, and prescription are original modes.^
• Thus Gareis (§ 70) recognises gift, marriage contract, testamentary
cession and oooupation only, where- disposition, and the like. ,
as Heimburger (pp. 106-110) and ' Lawrence (§ 74) enumerates
Holtzendorff (ii. p. 254) recognise conquest (subjugation) and pre-
cession, oocnpation, and accretion scription besides cession as derivative
only. modes. This is, however, merely the
consequence of a peculiar conception
' See below, § 216. Such alleged of what is called a derivative mode
special modes are sale, exchange, of acquisition.
376
STATE TERRITORY
XIII
CESSION ■
Grotius, ii. o. 6— Hall, § 33— Lawrence, § 76— PhlUimore, i. §§ 262-276—
Twiss, i. § 138— Walker, § 10— Halleok, i. pp. 164-167— Taylor, § 227
—Moore, i. §§ 83-86— Hershey, Nos. 174-178— Bluntsohli, §§ 285-287—
Hartmann, § 61— Heffter, §§ 69 and 182— Holtzendorff in HoUzendorff,
ii. pp. 269-274— Gareis, § 70— Liszt, § 10— Ullmann, §§ 97-98— Bonfils,
Nob. 564-571— M^rignhao, ii. pp. 487-498— Despagnet, Nos. 381-391—
Pradier-Fod6r6, ii. Nos. 817-819— Rivier, i. pp. 197-217— Nys, ii. pp.
10-37— Calvo, i. § 266— Eiore, ii. §§ 860-862, and Code, Nos. 147-164
and 1058 — Martens, i. § 91 — Heimburger, 2)er Shwerb der Gebiettfwheii
(1888), pp. 110-120— PhilUpson, Terminatim of Wwr and TrecUiea of
Peace (1916), pp. 277-334.
Conoep- § 213. Cession of State territory is the transfer of
Cession of Sovereignty over State territory by the owner-State to
T^ritory another State. There is no doubt whatever that such
cession is possible according to the Law of Nations, and
history presents innumerable examples of such transfer
of sovereignty. The Constitutional Law of the different
States may or may not lay down special rules ^ for the
transfer or acquisition of territory. Such rules can
have no direct influence upon the rules of the Law of
Nations concerning cession, since Municipal Law can
neither abohsh existing nor create new rules of Inter-
national Law.^ But if such municipal rules contain
constitutional restrictions on the Government with
regard to cession of territory, these restrictions are so far
important that such treaties of cession concluded by
heads of States or Governments as violate these restric-
tions are not binding.^
Subjects § 214. Since cession is a bilateral transaction, it has
Cession, two subjects — namely, the ceding and the acquiring
State. Both subjects must be States, and only those
' See above, § 168. ' See above, § 21.
» See below, § 497.
CESSION 377
cessions in which both subjects are States concern the
Law of Nations. Cessions of territory made to private
persons and to corporations ^ by native tribes or by
States outside the dominion of the Law of Nations
do not fall within the sphere of International Law,
neither do cessions of territory by native tribes made
to States 2 which are members of the Family of
Nations. On the other hand, cession of territory
made to a member of the Family of Nations by a
State as yet outside that family is real cession and
a concern of the Law of Nations, since such State
becomes through the treaty of cession in some respects
a member of that family.^ '
§ 215. The object of cession is sovereignty over such Object of
territory as has hitherto already belonged to another
State. As far as the Law of Nations is concerned, every
State as a rule can cede a part of its territory to another
State, or by ceding the whole of its territory can even
totally merge in another State. However, since certain
parts of State territory, as for instance rivers and the
maritime belt, are inahenable appurtenances of the land,
they cannot be ceded without a piece of land.*
The controverted question whether permanently
neutrahsed parts of a not permanently neutralised
State can be ceded to another State must be answered
in the affirmative,^ although the Powers certainly can
exercise an intervention by right. On the other hand,
a permanently neutrahsed State could not, except in
the case of mere frontier regulation, cede a part of its
neutrahsed territory to another State without the con-
sent of the Powers.* Nor could a State under suzer-
ainty or protectorate cede a part or the whole of its
' See above, § 209 (2). neutralised provinces of Chablais
» See below, §§ 221 and 222. *°<i Faucigny to France. See above,
' See above, § 103. f, ^^> ""^^^^ *-^^ P^^'™* PT*'°° °^
4 o I. L ,»^ J io,r these provinces IS mentioned.
See above, §§ 175 and 185. a ggg ^bove, § 96, and the Utera-
' Thus in 1860 Sardinia ceded her ture there quoted.
378
STATE TERRITORY
Cession.
territory to a third State without the consent of the
superior State. Thus, the Ionian Islands could not in
1863 have merged in Greece without the consent of
Great Britain, which exercised a protectorate over these
islands.
Form of § 216. The only form in which a cession can be effected
is an agreement embodied in a treaty between the ceding
and the acquiring State. Such treaty may be the out-
come of peaceable negotiations or of war, and the cession
may be one with or without compensation.
If a cession of territory is the outcome of war, it is
the treaty of peace which stipulates the cession among
its other provisions. Such cession is regidarly one
without compensation, although certain duties may
be imposed upon the acquiring State, as, for instance,
of taking over a part of the debts of the ceding State
corresponding to the extent and importance of the
ceded territory, or that of giving the individuals domi-
ciled on the ceded territory the option to retain their
old citizenship or, at least, to emigrate.
Cessions which are the outcome of peaceable negotia-
tions may be agreed upon by the interested States from
different motives and for different purposes. Thus
Austria, during war with Prussia and Italy in 1866,
ceded Venice to France as a gift, and some weeks after-
wards France on her part ceded Venice to Italy. The
Duchy of Courland ceded in 1795 its whole territory to,
and voluntarily merged thereby, in Russia ; in the same
way the then Free Town of Mulhouse merged in France
in 1798, the Congo Free State in Belgium in 1908, and
the Empire of Korea in Japan in 1910.
Cessions have in the past often been effected by
transactions which are analogous to transactions in
private business life. As long as absolutism was reigning
over Europe, it was not at all rare for territory to be
ceded in marriage contracts or by testamentary disfosi-
CESSION 379
tions.^ In the interest of frontier regulations, but also
for other purposes, exchanges of territory frequently
take place. Sale of territory is quite usual ; as late as
1867 Kussia sold her territory in America to the United
States for 7,200,000 dollars ; in 1899 Spain sold the
Caroline Islands to Grermany for 25,000,000 pesetas ; and
in 1916 Denmark sold the islands of St. Thomas, St. John
and St. Croix in the West Indies to the United States for
25,000,000 dollars. Pledge and lease are also made use
of. Thus, the then Repubhc of Genoa pledged Corsica to
France in 1768, Sweden pledged Wismar to Mecklenburg
in 1803 ; China ^ leased in 1898 Kiaochau to Germany,^
Wei-Hai-Wei and the land opposite the island of Hong-
Kong to Great Britain, and Port Arthur to Russia.*
Whatever may be the motive and the purpose of
the transaction, and whatever may be the compensa-
tion, if any, for the cession, the ceded territory is trans-
ferred to the new sovereign with aU the international
obHgations ^ locally connected with the territory- {Res
transit cum suo onere, an.d Nemo plus juris transferre
potest, quam ipse habet).
§ 217. The treaty of cession must be followed by Tradition
actual tradition ^ of the territory to the new owner-State, oeded
unless such territory is already occupied by the new Territory.
owner, as in the case where the cession is the outcome
of war and the ceded territory has been during such
' Phillimore, i. §§ 274-276, enu- territory comes under the 'admin-
merates many examples of such istration ' or under the " use, oooupa-
cession. The question whether the tion, and control ' of a foreign State.
monarch of a State under absolute See above, § 171 (2) and (4).
government could nowadays by a s g^g Martens, iV.iJ.©., 2nd Ser.
testamentary disposition cede tern- j^^^ „ 326.
tory to another State must, I believe, t'a ' ■Kir\ \t t> n n j o
be answered in the affirmative. . ' ,f ' ^sq*!"^' ^ ' "^ ^''•
« See above, § 171 (3). The leases ^^f "• PP- ^^ *"<^ ^0.
of Kiaochau and Port Arthur have How far a succession of States
been transferred to Japan, the first takes place in the case of cession of
as a result of the World War, territory has been discussed above,
and the second as the result of the § 84.
Russo-Japanese War. Cession may ' This was indirectly recognised
also take place under the disguise of by Sir W. Seott in The Fama, (1804)
an agreement according to which 5 C. Bob. 106.
380 STATE TERRITORY
war in the military occupation of the State to which
it is now ceded. But the validity of the cession does
not depend upon tradition/ the cession being completed
by ratification of the treaty of cession, and the capabiUty
of the new owner to cede the acquired territory to a
third State at once without taking actual possession of
it. 2 But of course the new owner-State cannot exercise
its territorial supremacy thereon until it has taken
physical possession of the ceded territory.
Veto of § 218. As a rule, no third Power has the right of veto
Powers, with regard to a cession of territory. Exceptionally,
however, such right may exist. It may be that a third
Power has by a previous treaty acquired a right of pre-
emption concerning the ceded territory, or that some
early treaty has created another obstacle to the cession,
as, for instance, in the case of permanently neutralised
parts of a not permanently neutrahsed State.' And
the Powers have certainly the right of veto in case a
permanently neutralised State desires to increase its
territory by acquiring land through cession from another
State.* But even where no right of veto exists, a third
Power might intervene for political reasons. For there
is no duty on the part of third States to acquiesce in
such cessions of territory as endanger the balance of
power or are otherwise of vital importance.^ And a
strong State wiU practically always interfere in case
a cession of such a kind as menaces its vital interests
is agreed upon. Thus, when in 1867 the reigning King
of Holland proposed to sell Luxemburg to France, the
North German Confederation intervened, and the
cession was not effected, but Luxemburg became per-
manently neutrahsed.
' This is oontroveraial. Many territory on her part to Sardinia
writers — see, for instance, Rivier, i. without previously having aotually
p. 203 — oppose the opinion presented taken possession of it.
in the text. ' See above, § 215.
" Thus France, to which Austria * See above, §§ 209 n. 3 and 215.
ceded in 1859 Lombardy, oededj this ' See above, § 136.
CESSION 381
§ 219. As the object of cession is sovereignty over Plebiscite
the ceded territory, all such individiials domiciled option,
thereon as are subjects of the ceding State become ifso
facto by the cession subjects ^ of the acquiring State.
The hardship involved in the fact that in aU cases of
cession the inhabitants of the territory who remain
lose their old citizenship and are handed over to a new
sovereign whetier they like it or not, has created a
movement in favour of the claim that no cession shall
be valid until the inhabitants have by a plebiscite^
given their consent to the cession. And several treaties *
of cession concluded during the nineteenth century stipu-
lated that the cession should only be valid provided the
inhabitants consented to it through a plebiscite. But
it is doubtful whether the Law of Nations will ever make
it a condition of every cession that it must be ratified by
a plebiscite.^ The necessities of international pohcy
may now and then allow or even demand such a plebis-
cite, but in most cases they will not allow it.®
The hardship of the inhabitants being handed over
to a new sovereign against their will can be lessened
by a stipulation in the treaty of cession binding the
acquiring State to give the inhabitants of the ceded
territory the option of retaining their old citizenship
on making an express declaration. Many treaties of
cession concluded during the second half of the nine-
teenth century contained this stipulation. But it must
be emphasised that, failing a stipulation expressly for-
bidding it, the acquiring State may expel those in-
' See Keith, The Theory of State ' See Rivier, i. p. 210, where all
Suaxsgion, etc. (1907), pp. 42-45 ; these treaties are enumerated.
Cogordan, La NationcUite (1890), 4 .i.i ^ ■ ^ .. ... . „ ,.
pp 317-398 ; Moore, iii. § 379. J,„ww^^^ K '"^ "^ ^^ ^ **
^ See Sto;rk, Opium u,ul Plebis- **"eht this to be necessary.
cite (1879) ; Rivier, i. p. 204 ; Freu- = Thus in the Treaties of Peace by
denthal. Die Volksdbstimrmmg bet which the settlement after the World
Gebietgdbtret^mgen und Eroherungen War is being effected some cessions
(1891); Bonfils, No. 570; Despagnet, are made to depend largely upon a
No. 391 ; Ullmann, § 97. plebiscite and others are not.
382
STATE TERRITORY
habitants who have made use of the option and retained
their old citizenship, since otherwise the whole popula-
tion of the ceded territory might actually consist of
aliens and endanger the safety of the acquiring State.
The option to emigrate within a certain period, which
is frequently stipulated in favour of the inhabitants of
ceded territory, is another means of averting the charge
that inhabitants are handed over to a new sovereign
against their will. Thus Article 2 of the Peace Treaty
of Frankfort, 1871, which ended the Franco-German
War, stipulated that the French inhabitants of the
ceded territory of Alsace and Lorraine should up to
October 1, 1872, enjoy the privilege of transferring their
domicile from the ceded territory to French soU.^
Similar options have been accorded in the Treaties of
Peace following the conclusion of the World War to the
inhabitants of territories ceded imder them. The terms
of the option vary in each particular case ; but the
general principle applied has been that persons habitually
resident in ceded territory acquire ifso facto the nation-
ality of the State to which the territory has been trans-
ferred, and lose the nationahty of the ceding State.
Nevertheless such persons, if over eighteen years old,
may opt for their old nationahty, and if they exercise
this option, their choice covers a wife and any children
under eighteen years of age. They must, however, in
that case remove to the territory of their old State. ^
' The important question whether Germany but for Article 1, part 2, of
subjects of the ceding States who are the additional treaty of Dec. 11,
born on the ceded territory but have 1871, to the Peace Treaty of Frank-
their domicile abroad become ipso fort. (Martens, 2f. R. G. , xx. p. 847. )
facto by the cession subjects of the See Bonfils, No. 427, and Oogordan,
acquiring State, must, I think, be La NcUionalitd, etc. (1890), p. 361.
answered in the negative, unless ' See for example Tieaty of Peace
special treaty arrangements stipulate with Germany, Articles 36 and 37,
the contrary. Therefore, Frenchmen with regard to German territory
bom in Alsace but domiciled at the ceded to Belgium. The general
time of the cession in Great Britain, principle is there, and indeed in
would not have lost their French most cases, appUed subject to an
citizenship through the cession to exception.
OCCUPATION 383
XIV
OCCUPATION
Hall, §§ 32-34— Westlake, i. pp. 98-113, 121-135— Lawrence, § 74— Philli-
more, i. §§ 226-250— Twiss, i. §§ 118-126— Hershey, Nos. 179-187—
Taylor, §§ 221-224— Walker, § 9— Wharton, i. § 2— Moore, i. §§ 80-81—
Wheaton, §§ 165-174— Bluntsohli, §§ 278-283— Hartmann, § 61— Heffter,
§ 70— Holtzendorff in Holtzmdm-ff, ii. pp. 255-266— Gareis, § 70— Liszt,
§ 10— Ullmann, § 93-96— Bonfils, Nob. 536-563— Despagnet, Nos. 392-399
— M^rignhao, ii. pp. 419-487— Pradier-Fod6r^, ii. Nos. 784-802— Rivier,
i. pp. 188-197— Nys, ii. pp. 58-122— Calvo, i. §§ 266-282— Fiore, ii.
Nos. 841-849, and Code, Nos. 1059-1072— Martens, i. § 90— Tartarin,
TraM de I'Occupation (1873) — Westlake, Chapters, pp. 155-187 —
Heimburger, Der Erwerb der Gebietshoheit (1888), pp. 103-155 — Salomon,
L' Occupation des Territoires sans Mattre (1889) — J^ze, i!tvde tMorique et
prMique sur rOcctipation, etc. (1896) — Maodonell in the Journal of the
Society of Comparative Legislation, New Ser. i. (1899), pp. 276-286 —
Waultrin in R.O., xv. (1908), pp. 78, 185, 401.
§ 220. Occupation is the act of appropriation by a Concep-
State through which it intentionally acquires sove- oooupa-
reignty over such territory as is at the time not under tw"-
the sovereignty of another State. Occupation as a mode
of acquisition difiers from subjugation ^ chiefly in that
the subjugated territory previously belonged to another
State. Again, occupation difiers from cession in that,
through cession, the acquiring State receives sovereignty
over the territory concerned from the former owner-
State. Cession, therefore, is a derivative mode of acqui-
sition, whereas occupation is an original mode. And it
must be emphasised that occupation can only take
place by and for a State ; ^ it must be a State act, that
is, it must be performed in the service of a State, or it
must be acknowledged by a State after its performance.
§ 221. Only such territory can be the object of occu- Objeotof
pation as is no State's land, whether entirely uninhabited, w^"''
as e.g. an island, or inhabited by natives whose com-
munity is not to be considered as a State. Natives may
1 See below, § 236. ' See above, § 209.
384
STATE TERRITORY
live on a territory under a tribal organisation which
need not be regarded as a State ; and even civilised
individuals may live and have private property on a
territory without forming themselves into a State proper
which exercises sovereignty over such territory. But
territory of any State, even though it is entirely out-
side the Family of Nations, is not a possible object of
occupation ; and it can only be acquired through cession^
or subjugation. On the other hand, a territory which
once belonged to a State, but has been afterwards
abandoned, is a possible object for occupation by an-
other State. ^
Since the open sea is free, no part of it can be the
object of occupation, nor can rocks or banks in the
open sea, although lighthouses may be built on them.^
Likewise the bed of the sea cannot be h,n object of occu-
pation,* but the subsoil ^ of the bed of the open sea
may become the object of occupation through driving
mines and piercing tunnels from the coast.®
Oooupa- § 222. Theory and practice agree nowadays upon the
e<^.^ rule that occupation is effected through taking posses-
sion of, and establishing an administration over, the
territory in the name of, and for, the acquiring State.
Occupation thus effected is real occupation, and, in
contradistinction to jkstitious occupation, is named
effective occupation. Possession and administration
are the two essential facts that constitute an effective
occupation.
(1) Possession. — The territory must really be taken
' See above, § 214. North Pole could be the object of
' See below, §§ 228 and 247. oooupation. The question must, I
' See above, § 190c. ^.^^«^fj ^^ ^^^^^^^f i° *''!u°^f?^!
« o 1. , l r,c^ Since there is no land at the North
See below, § 281 n. Pole ggg g^^^^^ j^ ^j^ ijj (jg^gj^
» See below, §§ 287c and 287d. pp. 928-941, and Baloh in A.J., iv.
8 When, in 1909, Admiral Peary (1910), pp. 265-275. As regards the
reached the North Pole and hoisted South Pole, see the Law Magazine
the flag of the United States, the and Beview, xxxvii. (1912), pp. 326-
question was discussed whether the 328.
OCCUPATION 385
into possession by the occupying State. For this
purpose it is necessary that it should take the territory
under its sway (corpvis) with the intention of acquiring
sovereignty over it (animus). This can only be done
by a settlement on the territory accompanied by some
formal act which annoimces both that the territory has
been taken possession of and that the possessor intends
to keep it under his sovereignty. It usually consists either
of a proclamation or of the hoisting of a flag. But such
formal act by itself constitutes fictitious occupation
only, unless there is left on the territory a settlement
which is able to keep up the authority of the flag. On
the other hand, it is immaterial whether or not some
agreement- is made with the natives by which they
submit themselves to the sway of the occupying State.
Any such agreement is usually neither understood nor
appreciated by them, and even if the natives really do
understand its meaning, it has a moral value only.'^
(2) Administration. — ^After having, in the aforemen-
tioned way, taken possession of a territory, the possessor
must estabhsh some kind of administration thereon
which shows that the territory is really governed by the
new possessor. If, within a reasonable time after the
act of taking possession, the possessor does not estabhsh
some responsible authority which exercises governing
functions, there is then no effective occupation, since
in fact no sovereignty is exercised by any State over
the territory.
§ 223. In former times, the two conditions of possession inchoate
and administration, which now make the occupation effec- diI^ °
tive, were not considered necessary for the acquisition of "overy.
territory through occupation. In the age of the discoveries,
' If an agreement with natives tain a ceesion from a native chief,
were legally important, the territory this is, nevertheless, not cession
would be acquired by cession, and in the technical sense of the term
not by occupation. But although in International Law ; see above,
it is nowadays quite usual to ob- § 214.
VOL. I. 2b
386 STATE TERRITORY
States maintained that the fact of discovering a hitherto
unknown territory was equivalent to acquisition through
occupation by the State in whose service the discoverer
made his explorations. And although later on a real
taking possession was considered necessary, it was not
until the eighteenth century that the writers on the Law
of Nations postulated an effective occupation,^ or until
the nineteenth century that the practice of the States
accorded with this postulate. But although nowadays
discovery does not constitute acquisition through occu-
pation, it is nevertheless not without importance. It is
agreed that discovery gives to the State in whose service
it was made an inchoate title ; it ' acts as a temporary
bar to occupation by another State ' ^ for such a period
as is reasonably sufficient for effectively occupying the
discovered territory. If the period lapses without any
attempt by the discovering State to turn its inchoate
title into a real title of occupation, the inchoate title
perishes, and any other State can now acquire the terri-
tory by means of an effective occupation.
Notifloa- § 224. No rule of the Law of Nations exists which
Oo"u°L i^3,kes notification of occupation to other Powers a
tion to necessary condition of its vaUdity. As regards all future
Powers, occupations on the African coast the Parties to the
General Act of the Berhn Congo Conference of 1885
stipulated^ that occupation should be notified to one
another. But this act has been abrogated.*
Extent of § 225. Siuce an occupation is vahd only if effective,
tion?^^ it is obvious that the extent of an occupation ought
only to reach over so much territory as is effectively
occupied. In practice, however, the interested States
have neither acted in the past, nor do they at present
act, in conformity with any such rule ; on the contrary,
they have always tried to attribute to their occupation
1 See Vattel, i. § 208. * See \ Convention signed at St.
' Thus Hall, § 32, p. 105. Germain on September 10, 1919,
» Article 34. Treaty|Ser.JNo. 18 (1919), Cmd. 477.
OCCUPATION 387
a much wider area. Thus it has been maintained that
an effective occupation of the land at the mouth of a
river is sufficient to bring under the sovereignty of the
occupying State the whole territory through which such
river and its tributaries run up to the very crest of the
watershed.^ Again, it has been maintained that, when
a coast-hne has been efiectively occupied, the extent
of the occupation reaches up to the watershed of all
such rivers as empty into the coast-line.^ And it has,
thirdly, been asserted that effective occupation of a
territory makes the sovereignty of the possessor extend
also over neighbouring territories as far as it is necessary
for the integrity, security, and defence of the really
occupied land.^ But all these and other fanciful asser-
tions have no basis. In truth, no general rule can be
laid down beyond the above, that occupation reaches
as far as it is effective. How far it is effective is a ques-
tion in each particular case. It is obvious that when
the agent of a State takes possession of a territory and
makes a settlement on a certain spot of it, he intends
thereby to acquire a vast area by his occupation.
But everjrthing depends, not upon his intention, but
upon how far around the settlement or settlements the
responsible authority governing the territory in the
name of the possessor succeeds by degrees in estabhsh-
ing its sovereignty. The payment of a tribute on the
part of tribes settled far away, the fact that flying
columns of the military or the poHce sweep, when neces-
sary, remote spots, and many other facts, can show how
far round the settlements the possessor is really able to
assert the estabhshed authority. But it will always be
* Claim of the United States in their dispute with Spain oonoerning
the Oregon Boundary Dispute (1827) the boundary of Louisiana (1805),
with Great Britain. See Twiss, i. approved of by Twiss, i. § 125.
§§ 126 and 127, and his The Oregon ' This is the so-oalled 'right of
Question Exammed (1846) ; Philli- contiguity,' approved of by Twiss,
more, i. § 250 ; Hall, § 33. i. §§ 124 and 131. See also Wright
^ Claim of the United States in in A.J., xii. (1918), pp. 519-521.
388 STATE TERRITORY
difficult to mark exactly in this way the boundary of
an effective occupation, since naturally the tendency
prevails to extend the sway constantly and gradually
over a wider area. It is, therefore, a well-known fact
that disputes concerning the boundaries of occupations
can only rarely be decided on the basis of strict law ;
they must nearly always be compromised, whether by a
treaty or by arbitration.^
Proteo- § 226. In the second half of the nineteenth century,
PrToursor ^^^ desire of States to acquire as colonies vast terri-
Uon°°"^* tories which they were not at once able to occupy
effectively led to agreements with the chiefs of natives
inhabiting unoccupied territories, by which these chiefs
committed themselves to the ' protectorate ' of States
that are members of the Family of Nations. These
so-called protectorates are certainly not protectorates
in the technical sense of the term, which denotes that
relationship between a strong and a weak State where by
a treaty the weak State has put itself under the protection
of the strong and transferred to the latter the manage-
ment of its more important international relations.^
Neither can they be compared with the protectorate
which members of the Family of Nations exercise over
such non-Christian States as are outside that family,*
because the respective chiefs of natives are not the heads
of States, but heads of tribal communities only. Such
agreements, although they are named ' protectorates,'
are nothing else than steps taken to exclude other Powers
from occupying the respective territories. They give,
like discovery, an inchoate title, and are the precursors
of future occupations.
§ 227. The uncertainty of the extent of an occupa-
• The Institute of International prising ten articles; see Anmmire,
Law, in 1888, at its meeting in x. p. 201.
Lausanne, adopted a 'Projet de 2 See aliovB SS02»n,1Q'i
DAolaration international relative bee above, SS a^J and 93.
auxOooupationsdeTerritoires.'oom- ' See above, § 94.
OCCUPATION 389
tion, and the tendency of every colonising State to Spheres of
extend its occupation constantly and gradually into
the interior, or ' hinterland/ of an occupied territory,
led several States vdth colonies in Africa to secure for
themselves ' spheres of influence ' by international
treaties with other interested Powers. ' Sphere of
influence ' is therefore the name of territory exclusively
reserved for future occupation by a Power which has
effectively occupied adjoiniog territories. In this way
disputes may be avoided for the future, and the in-
terested Powers can gradually extend their sovereignty
over vast territories without coming into conflict with
other Powers. Thus, to give some examples, Great
Britain concluded treaties regarding spheres of influ-
ence with Portugal! in 1890, with Italy ^ in 1891, with
Germany ^ in 1886 and 1890, -and with Fiance * in
1898.5
§ 228. As soon as a territory has been occupied by a Conse-
member of the Family of Nations, it comes within the ^ ^^.
sphere of the Law of Nations, because it constitutes a pation.
portion of the territory of a subject of International Law.
No other Power can acquire it thereafter through occu-
pation, unless the occupying State has either intention-
ally withdrawn from it or has been successfully driven
away by the natives without attempting or being able
to reoccupy it.® On the other hand, the Power which
assumes sovereignty over the occupied territory is
thereafter responsible for all events of international
importance on the territory. It has, in particular, to
keep up a certain order among the native tribes, so as
* See Martens, X.B.G., 2nd Ser. ' Protectorates and spheres of
xviii. p. 154. influence are eshanstiTely treated
» S« Martens, X.R.G., !&d Ser. ^ HaU, ForagH Powen, and ^urw-
^^ji j-5 dictum of tA« Bntuh Oroim, ^
a c \r " ,- „ ^ -^j o 92-105; bntHaU fails to distingniah
•- ^^T^l^ S: between protectorates over Eastern
xii. p. 298, and in. p. 894. gt^tes and protectorates over natiTe
* See Martens, y.B.G., 2nd Ser. tribes.
" p. 116. « See below, § 247.
390
STATE TERRITORY
to restrain them from acts of violence against neigh-
bouring territories, and to pmiish them for such acts
if committed.
A question of some importance is how far occupation
affects private property of the inhabitants of the occu-
pied territory. As according to the modern conception
of State territory, the latter is not identical with private
property of the State, occupation only brings a territory
under the sovereignty of the occupying State, and there-
fore does not affect existing private property of the
inhabitants. In the age of the discoveries, occupation
was indeed considered to include a title to property
over the whole occupied land ; but nowadays this can
no longer be maintained. Being now their sovereign,
the occupying State may impose any burdens it hkes
on its new subjects, and may, therefore, even confiscate
their private property ; but occupation, as a mode of
acquiring territory, does not of itself affect private pro-
perty thereon. If the Municipal Law of the occupy-
ing State does give to it a title to private property
over the whole occupied land, such a title is not based
on International Law.
XV
ACCRETION
Grotius, ii. o. 8, §§ 8-16— Hall, § 37— Lawrence, § 75— Phillimore, i. §§ 240-
241— TwisB, i. §§ 131 and 154— Moore, i. § 82— Hershey, No. 169—
Bluntsohli, §§ 294-295— Hartmann, § 61— Heffter, § 69— Holtzendorff
in Holtzendorff, ii. pp. 266-268— Gareis, § 22— Liszt, § 10— Ullmann,
§ 92— Bonfils, No. 533— Despagnet, No. 379— Pradier-Fod6r6, ii. Nos.
803-816— Rivier, i. pp. 179-180— Nys, ii. pp. 4-10— Calvo, i. § 266—
Fiore, ii. No. 852, and Ood^, Nos. 1073-1076— Martens, i. § 90—
Heimburger, Drt Erwerb der Qebietshoheit (1888), p. 106.
Conoep- § 229. Accretion is the name for the increase of land
^°or°! through new formations. Such new formations may
tion. be only a modification of the existing State territory,
ACCRETION 391
as, for instance, where an island rises within a river, or
a part of a river, which is totally within the territory of
one and the same State ; and in such case there is no
increase of territory to correspond with the increase of
land. On the other hand, many new formations occur
which really do enlarge the territory of the State to
which they accrue, as, for instance, where an island rises
within the maritime belt. And it is a customary rule
of the Law of Nations that enlargement of territory, if
any, created through new formations, takes place ipso
facto by the accretion, without the State concerned
taking any special step for the purpose of extending its
sovereignty. Accretion must, therefore, be considered
as a mode of acquiring territory.
§ 230. New formations through accretion may be Different
artificial or natural. They are artificial if they are the Aoore-°
outcome of human work. They are natural if they are *^o°-
produced through operation of nature. And within
the circle of natural formations different kinds must ^
again be distinguished — ^namely, alluvions, deltas, new-
born islands, and abandoned river-beds.
§ 231. Artificial formations are embankments, break- Artificial
waters, dykes, and the like, built along the river or the tio™*
coast-hne of the sea. As such artificial new formations
along the bank of a boundary river may more or less
push the volume of water so far as to encroach upon
the other bank of the river, and as no State is allowed
to alter the natural condition of its own territory to
the disadvantage ^ of the natural conditions of a neigh-
bouring State territory, a State cannot build embank-
ments, and the like, of such kind without a previous
agreement with the neighbouring State. But every
State may construct such artificial formations as far
into the sea beyond the low-water mark as it Ukes, and
thereby gain considerably in land and also in territory,
1 See above, § 127.
392
STATE TERRITORY
Allu-
vions.
Deltas
since the maritime belt, (which is at least three miles
wide), is now to be measured from the extended
shore.
§ 232. Alluvion is the name for an accession of land
washed up on the seashore or on a river-bank by the
waters. Such accession is as a rule produced by a slow
and gradual process, but sometimes also through a
sudden act of violence, the stream detaching a portion
of the soil from one bank of a river, carrying it over
to the other bank, and embedding it there so as to be
immovable (avulsio). Through alluvions the territory
of a State may be considerably enlarged. For if the
alluvion takes place on the shore, the extent of the
territorial maritime belt is now to be measured from
the extended shore. And if the alluvion takes place
on the one bank of a boundary river, and the course
of the river is thereby naturally so altered that the
waters in consequence cover a part of the other bank,
the boundary line, which runs through the middle or
through the mid-channel,^ may thereby be extended
into former territory of the other riparian State.
§ 233. Similar to alluvions are deltas. Delta is the
name for a tract of land at the mouth of a river shaped
like the Greek letter A, and owing its existence to a
gradual deposit by the river of sand, stones, and earth
on one particular place at its mouth. As the deltas
are continually increasing, the accession of land they
produce may be very considerable, and, according to the
Law of Nations, is to be considered an accretion to
the territory of the State to which the mouth of the
river belongs, although the delta may be formed out-
side the territorial maritime belt. It is evident that in
the latter case an increase of territory is the result, since
the maritime belt is now to be measured from the shore
of the delta.
See above, § 199 (1).
ACCRETION 393
§ 234. The natural processes which create alluvions New-bo™
on the shore and banks, and deltas at the mouths of ^ " ^'
rivers, together with other processes, lead to the birth of
new islands. If they rise on the high seas outside the
territorial maritime belt, they are no State's land, and
may be acquired through occupation on the part of any
State. But if they rise in rivers, lakes, and within the
maritime belt, they are, according to the Law of Nations,
considered accretions to the neighbouring land. New
islands in boundary rivers which rise within the
boundary Mne of one of the riparian States accrue to
the land of such State, and islands which rise upon the
boundary hne are divided by it into parts which accrue
to the land of the riparian States concerned. If an
island rises within the territorial maritime belt, it
accrues to the land of the Uttoral State, and the extent
of the maritime belt is now to be measured from the
shore of the new-born island.
An illustrative example is the case ^ of The Anna.
In 1805, during war between Great Britain and Spain,
the British privateer Mmerva / captured the Spanish
vessel Anna near the mouth of the river Mississippi.
When brought before the British Prize Court, the United
States claimed the captured vessel on the groimd that
she was captured within the American territorial mari-
time belt. Lord Stowell gave judgment in favour of
this claim, because, although it appeared that the
capture did actually take place more than three miles
ofE the coast of the continent, the place of capture was
within three miles of some small mud-islands composed
of earth and trees drifted down into the sea.
§ 235. It happens sometimes that a river abandons Aban-
its bed entirely or dries up altogether. If it was aR°ver-
navigable boundary river, the boundary hne continues ^^'^^•
'See 5 C. Rob. 373. See also Sri Raja Chellihomi Bama Rao, (I9\i)
The Secretary of State for India v. 32 T.L.R. 652.
394
STATE TERRITORY
to run along the middle of the old Thalweg in the
abandoned bed.^ But often this cannot be ascertained,
and in such cases ^ the boundary line is considered to
run through the middle of the abandoned bed, although
the territory of one riparian State may become thereby
enlarged, and that of the other diminished.
XVI
SUBJUGATION
Vattel, iii. §§ 199-203— Hall, §§ 204-205— Lawrence, § 77— HaUeok, ii. pp.
501-534— Taylor, § 220— Walker, § 11— Herahey, No. 171— Wheaton,
§ 165— Moore, i. § 87— Bluntsohli, §§ 287-289, 701-702— Hefiffcer, § 178—
Liszt, § 10— Ullmann, §§ 92 and 97— Bonfils, No. 535— Despagnet, Noa.
387-390— Rivler, i. pp. 181-182, ii. 436-441— Nys, ii. pp. 44-57— Calvo,
V. §§ 3117, 3118— More, ii. No. 863, iii. No. 1693, and Code, Nos. 1083-
1086 — Martena, i. § 91 — HoltzendorflF, Eroherung und Eroberungsrecht
(1871)— Heimburger, Der Erwerh der Gebietshoheit (1888), pp. 121-132—
Westlake in the Law Quarterly Review, xvii. (1901), p. 392, now re-
printed in Westlake, Papers, pp. 475-489— Phillipson, Termination of
War and Treaties of Peace (1916), pp. 9-51.
Conoep- § 236. Conquest is the taking possession of enemy
Conquest territory through mihtary force in time of war. Con-
Subiuca- <1^®^* aloue does not ipso facto make the conquering
tion. State the sovereign of the conquered territory, although
such territory comes through conquest for the time
under the sway of the conqueror. Conquest is only a
mode of acquisition if the conqueror, after having
firmly estabUshed the conquest, formally annexes the
territory. Such annexation makes the enemy State
cease to exist, and thereby brings the war to an end.
And as such ending of war is named subjugation, it is
conquest followed by subjugation, and not conquest
alone, which gives a title, and is a mode of acquiring
territory.^ It is, however, quite usual to speak of title
^ See above, § 199. ' Concerning the distinction be-
* As in the case of npn-navigable tween conquest and subjugation,
rivers. see below, vol. ii. § 264.
sub;^ugation 395
by conquest, and everybody knows that subjugation
after conquest is thereby meant. But it must be
specially mentioned that, if a belligerent conquers a
part of the enemy territory and afterwards makes the
vanquished State cede the conquered territory in the
treaty of peace, the mode of acquisition is not sub-
jugation but cession.^
§ 237. Some writers ^ maintain that subjugation is Subjuga-
only a special case of occupation, because, as theycontra-
assert, through conquest the enemy territory becomes y^*'"°'
no State's land, and the conqueror can acquire it by Oooupa-
turning his mihtary occupation into absolute occupa-
tion. Yet this opinion cannot be upheld, because mih-
tary occupation, which is conquest, iu no way makes
enemy territory no State's land. Conquered enemy
territory, although actually in possession and under the
sway of the conqueror, remains legally under the sove-
reignty of the enemy until through annexation it comes
under the sovereignty of the conqueror. Annexation
turns the conquest into subjugation. It is the very
annexation which uno actu makes the vanquished State
cease to exist, and brings the territory under the con-
queror's sovereignty. Thus the subjugated territory
has not for one moment been no State's land, but passes
from the enemy to the conqueror, not through cession,
but through annexation.
^ See above, § 216. Annexation under her administration since 1878),
by a State of territory hitherto and the annexation by Great Britain
under its administration, or leased immediately after the outbreak of
to it, or granted to it for its ' use, war with Turkey in 1914 of the
occupation, and control ' (see above, island of Cyprus, which had been
§ 171 (2)-(4) ), is not subjugation under British administration since
because the annexing State was 1878. Such annexations without
already exercising sovereignty over the consent of the State which in
the territory in question. Examples law owns the territory are certainly
of annexations of this kind are the unlawful in time of peace, and of
annexation by Austria in 1908 of doubtful legality in war. However
the Turkish provinces of Bosnia this may be, they are not a regular
and Herzegovina, and of the Turkish mode of acquiring territory,
island Ada-Kal6 in the Danube in ^ HoltzendorflF, ii. p. 255 ; Heim-
1913 (these territories having been burger, p. 128 ; Salomon, p. 24.
396
STATE TERRITORY
Justifioa- § 238. As long as a Law of Nations has been in
Subjuga- existence, the States, as well as the vast majority of
Mode of' ^"ters, have recognised subjugation as a mode of
Aoquisi- acquiring territory. Its justification Ues in the fact
that war is a contention between States for the purpose
of overpowering one another. States which go to war
know beforehand that they risk more or less their very
existence, and that it may be a necessity for the victor
to annex the conquered enemy territory, be it in the
interest of national unity or of safety against further
attacks, or for other reasons. One must hope that the
time will come when war will disappear entirely, but, as
long as war exists, subjugation will also be recognised.
If some writers ^ refuse to recognise subjugation at all
as a mode of acquiring territory, they show a lack of
insight into the historical development of States and
nations.^
Subjuga- § 239. Subjugation is, as a rule, a mode of acquiring
Whole or the entire enemy territory. The actual process is
of Enemy regularly that the victor destroys the enemy military
Territory, forces, takcs posscssion of the enemy territory, and then
annexes it, although the head and the Government of
the extinguished State may have fled, and may protest,
and still keep up a claim. Thus after the war with
Austria and her alUes in 1866, Prussia subjugated the
territories of the Duchy of Nassau, the Kingdom of
Hanover, the Electorate of Hesse-Cassel, and the Free
Town of Frankf ort-on-the-Maine ; and Great Britain
subjugated in 1901 the territories of the Orange Free
State and the South African Republic,
But it is possible for a State to conquer and annex a
'part of enemy territory, either when the war ends by a
' Bonfila, No. 535 ; Fiore, ii. No. Pan-Amerioan Congress at Washing-
863, iii. No. 1693, and Code, No. ton, 1890, passed a resolution that
7078. See also Despagnet, Nos. conquest should hereafter not be a
387-390. mode of acquisition of territory in
' It should be mentioned that the America ; see Moore, i. § 87.
SUBJUGATION 397
treaty of peace in which the vanquished State, without
ceding the conquered territory, submits silently ^ to
the annexation, or by simple cessation of hostilities.^
It must, however, be emphasised that such a mode
of acquiring a part of enemy territory is totally different
from forcibly taking possession of a part thereof during
the continuance of war. Such a conquest, although the
conqueror may intend to keep the conquered territory
and therefore to annex it, does not confer a title as long
as the war has not terminated either through simple
cessation of hostilities or by a treaty of peace. There-
fore, the practice, which sometimes prevails, of annexing
a conquered part of enemy territory during war cannot
be approved. For annexation of conquered enemy
territory, whether of the whole or of part, confers a
title only after a firmly establish^ conquest, and so long
as war continues, conquest is not firmly established.^
For this reason * the annexation of the Orange Free
State in May 1900, and of the South African Republic
in September 1900, by Great Britain during the Boer
War was premature. So also was the annexation of
Tripoli and Cyrenaica by Italy during the Turco-Itahan
War in November 1911.
§ 240. Although subjugation is an original mode of Conse-
acquisition, since the sovereignty of the acquiring State subj^"
is not derived from that of the State formerly owning *'°°-
the territory, the new owner-State is nevertheless the
successor of the former owner-State as regards many
points which have been discussed above (§ 82). It must
be specially mentioned that, as far as the Law of Nations^
is concerned, the subjugating State does not acquire
the private property of the inhabitants of the annexed
* See below, toL ii. § 273. established as long as gnerilla war is
• See below, voL ii § 263. going on.
' See below, voL ii. § 60, coneem- * See below, voL ii. § 167.
ing gnerilla war after the termination ° United States r. PercAetnan,
of real war. Many writers, how- (1833) 7 Peters 51, and Sayre in
eTer, deny that a conquest is firmly A.J., xii. (1918), pp. 475-497.
398
STATE TERRITORY
territory. Being now their sovereign, it may indeed
impose any burdens it pleases on its new subjects — it
may even confiscate their private property, since a
sovereign State can do what it likes -vnth its subjects —
but subjugation itself does not by International Law
touch or aiiect private property.
As regards the national status of the subjects of
the subjugated State, doctrine and practice agree that
such enemy subjects as are domiciled on the annexed
territory and remain there after annexation become
ifso facto by the subjugation ^ subjects of the subju-
gating State. But the national status of such enemy
subjects as are domiciled abroad and do not return, and
further of such as leave the country before the annexa-
tion or immediately afterwards, is matter of dispute.
Some writers maintain that these individuals do in spite
of their absence become subjects of the subjugating
State ; others emphatically deny it. Whereas the prac-
tice of the United States of America seems to be in con-
formity with the latter opinion,^ the practice of Prussia
in 1866 was in conformity with the former. Thus in the
case of Count Platen-Hallermund, a Cabinet Minister of
King George v. of Hanover, who left Hanover with his
King before the annexation in 1866 and was in 1868
prosecuted for high treason before the Supreme Prussian
Court at Berhn, this court decided that the accused had
become a Prussian subject through the annexation of
Hanover.^ I beheve that a distinction must be made
between those individuals who leave the country before
1 See Campbell v. Hall, (1774) 1 ^ See Halleck, ii. p. 476.
Cowper 208, and United States v.
Repentigny, (1866) 5 Wallace 211. = See Halleok, ii. p. 476, on tlie
The case is similar to that of cession : one hand, and, on the other, Rivier,
see above, § 219 ; Keith, The Theory ii. p. 436. Valuable opinions of
of State Succetsion (1907), pp. 45 and ^ Zaohariae and Neumann, who deny
48 ; Moore, iii. § 379 ; Edwards in that Count Platen was a Prussian
the Journal of the Society of Com- subject, are printed in the Deuteche
parative Legislation, New Ser. xv. Strafrechts-Zeiiung (1868), pp. 304-
(1915), pp. 108-111. 320.
SUBJUGATION 399
and those who leave it after annexation. The former
are not under the sway of the subjugating State at the
time of annexation, and, since the personal supremacy
of their home State terminates with its extinction
through annexation, they would seem to be outside the
sovereignty of the subjugating State. But those indi-
viduals who leave the country after annexation leave it
at a time when they have become subjects of the new
sovereign, and they therefore remain such subjects even
after they have left the country, for there is no rule of
the Law of Nations in existence which obhges a sub-
jugating State to grant the privilege of emigration ^ to
the inhabitants of the conquered territory.
Different from the fact that enemy subjects become
through annexation subjects of the subjugating State
is the question what position they acquire within it.
This question is one of Municipal, and not of Inter-
national Law. The subjugating State can, if it hkes,
allow them to emigrate and to renounce their newly
acquired citizenship, and its Municipal Law can put
them in any position it hkes, and can in particular grant
or refuse them the same rights as those which its citizens
by birth enjoy.
§ 241. Although subjugation is an original mode of Veto of
acquiring territory, and no third Power has as a rule ^ a powers.
right of intervention, the conqueror has not in fact an
unlimited possibUity of annexation of the territory of
the vanquished State. When the balance of power is
endangered, or when other vital interests are at stake,
third Powers can and will intervene, and history records
many instances of such interventions. But it must be
emphasised that the validity of the title of the subju-
'■ Both Westlake and Halleok state subjugating'State to grant this option,
that the inhabitants must have a free ^ But this rule has exceptions as
option to stay or leave the country ; in the case of a State whose indepen-
but there is no rule of International denoe and integrity have been guar-
Law which imposes the duty upon a auteed by one or more Powers.
400
STATE TERRITOEY
gating State does not depend upon recognition on the
part of other Powers. Nor is a mere protest of a third
Power of any legal weight.
XVII
PRESCRIPTION
GrotiuB, ii. e. 4— Vattel, ii. §§ 140-151— Hall, § 36— Westlake, i. pp. 94-96
—Lawrence, § 78— Phillimore, i. §§ 251-261— Twias, i. § 129— Taylor,
§§ 218-219— Walker, § 13— Wheaton, § 164— Hershey, No. 170— Moore,
i. § 88— Bluntsohli, § 290— Hartmann, § 61— Heffter, § 12— Holtzendorff
in Holtzendorff, ii. p. 255 — Ullmann, § 92 — Bonfils, No. 534 — Mirign-
hao, ii. pp. 415-418 — Deepagnet, No. 380 — Pradier-Fod6r6, ii. Nos. 820-
829— Rivier, i. pp. 182-184— Nya, ii. pp. 38-44— Oalvo, i. §§ 264-265—
Fiore, ii. Nob. 850-851, and Code, Nos. 1079-1082— Martens, i. § 90—
G. F. Martens, §§ 70-71 — Heimburger, Der Erwerh der Oehietsh6Ke.it
(1888), pp. 140-155— Audinet in R.Q., iii. (1896), pp. 313-325— Ralaton
in A.J., iv. (1910), pp. 133-144.
Oonoep- § 242. Since the existence of a science of the Law of
Preao°rip- Nations, there has always been opposition to prescrip-
*'°"- tion as a mode of acquiring territory. Grotius rejected
the usucaption of the Roman Law, yet adopted from
the same law immemorial prescription ^ for the Law of
Nations. But whereas a good many writers ^ stiU defend
that standpoint, others ^ reject prescription altogether.
Again, others ^ go beyond Grotius and his followers, and
do not require possession from time immemori^d, but
teach that an undisturbed continuous possession can
under certain conditions produce a title for the pos-
sessor, if the possession has lasted for some length of
time.
This opinion would indeed seem to be correct, because
» See Grotius, ii. o. 4, §§ 1, 7, 9. ' Vattel, ii. § 147 ; Wheaton, §
' See, for instance, Heffter, § 12 ; 165 ; Phillimore, i. § 259 ; Hall, § 36;
Martens, i. § 90. Bluntschli, § 290 ; Pradier-Fod6rA, ii.
" G. F. Martens, § 71 ; Kliiber, No. 825 ; Bonfils, No. 534, and many
§§ 6 and 125 ; Holtzendorff, ii. others.
p. 255 ; Ullmann, § 92.
PRESCRIPTION 401
it recognises theoretically what actually goes on in
practice. There is no doubt that, in the practice of
the members of the Family of Nations, a State is con-
sidered to be the lawful owner even of those parts of
its territory of which originally it took possession
wrongfully and unlawfully, provided that the possessor
has been in xmdisturbed possession for such a length of
time as is necessary to create the general conviction that
the present condition of things is in conformity with
international order. Such prescription caimot be com-
pared with the usucaption of Koman Law, because the
latter required hona-fide possession, whereas the Law of
Nations recognises prescription both in cases where the
State is in bona-fde possession and in cases where it
is not. The basis of prescription in International Law
is nothing else than general recognition ^ of a fact, how-
ever unlawful in its origin, on the part of the members
of the Family of Nations. And prescription in Inter-
national Law may therefore be defined as the acquisi-
tion of sovereignty over a territory thnrngh continuous
and undisturbed exercise of sovereignty over it during such
a period as is necessary to create under the influence of his-
torical development the general conviction that the present
condition of things is in conformity with international
order. Thus, prescription in International Law has
the same rational basis as prescription in Municipal
Law — ^namely, the creation of stability of order.
§ 243. From the conception of prescription, as above Presonp-
defined, it becomes apparent that no general rule can ^^0 ted.^
be laid down as regards the length of time and other
circumstances which are necessary to create a title by
prescription. Everything depends upon the merits of
' This is pointed out with great a oustomary rule of International
lucidity by Heimburger, pp. 151- Law in existenoe.aooording to which
155 ; he rejects, however, pre- recognition can make good originally
soription as a mode of acquiring wrongful possession,
territory, maintaining that there is
VOL. I. 2o
402 STATE TERRITOEY
the individual case. As long as other Powers keep up
protests and claims, the actual exercise of sovereignty
is not undisturbed, nor is there the required general
conviction that the present condition of things is in
conformity with international order. But after such
protests and claims, if any, cease to be repeated, the
actual possession ceases to be disturbed, and thus under
certain circumstances matters may gradually ripen iuto
that condition which is in conformity with international
order. The question, at what time and under what
circumstances such a condition of things arises, is not
one of law, but of fact. When, to give an example, a
State which originally held an island mala fide under a
title by occupation, knowing weU that this land had
already been occupied by another State, has succeeded
in keeping up its possession undisturbed for so long a
time that the former possessor has ceased to protest,
and has silently dropped the claim, the conviction will
be prevalent among the members of the Family of
Nations that the present condition of things is in con-
formity with international order. Or, to give another
example, when an incorrectly drawn boundary hne,
which wrongly allots to one of the States concerned a
tract of territory, has for a long time been regarded as
correct, the conviction will prevail that the present con-
dition of things is in conformity ivith international order,
even if afterwards the wronged State raises a protest,
and demands that the boundary line should be redrawn.*
These examples show why a certain number of years ^
^ See Mcaryland v. Weet Virginia, the members of the Family of
(1909) 217 U.S. 22, where it was held Nations should enter into an agree-
that a boundary line which had been ment stipulating the number of
for a century regarded as correct years necessary for prescription, and
should be maintained, although after- David Dudley Field proposes the
wards alleged to be incorrect. The following rule (52) in his Outlinea of
court came to this conclusion recog- an International Code : ' The unin-
nising prescription as conferring terrupted possession of territory or
title. other property for fifty years by a
nation excludes the claim of every
' Vattel (ii. § 151) suggests that other nation.'
LOSS OP STATE TERRITORY 403
caonot, once for all, be fixed to create the title by
prescription. There are indeed immeasurable and
imponderable circxmistances and influences besides the
mere lapse of time ^ at work to create the conviction
that in the interest of stabihty of order the present
possessor should be considered the rightful owner of a
territory. And these circumstances and influences, which
are of a political and historical character, differ so much
in the different cases that the length of time necessary
for prescription must likewise differ.
XVIII
LOSS OP STATE TERRITORY
Grotiua, u. c. 9— Hall, § 34— PhilUmore, i. §§ 284-295— Moore, i. §§ 89 and
90— Hershey, Nos. 188-190— Holtzendorff in Hdtzendorff, ii. pp. 274-
276— Gareis, § 70— Liszt, § 10— Ullmann, § 100— Pradier-Pod6rf, u. Nob.
850-852— Bonfils, No. 544— Rivier, i. § 13— Fiore, ii. No. 865— Martens,
i. § 92.
§244. To the five modes of acquiring sovereignty six Modes
over territory correspond five modes of losing it — stite"'^
namely, cession, dereliction, operation of nature, sub- Territory,
jugation, prescription. But there is a sixth mode of
losing territory — ^namely, revolt. No special details are
necessary with regard to loss of territory through sub-
jugation, prescription, and cession, except that it is of
some importance to repeat here that the historical cases
of pledging, leasing, and giving territory to another
State to administer are in fact, although not in strict
law, nothing else than cessions ^ of territory. But
operation of nature, revolt, and derehction must be
specially discussed.
' Heffter's (§ 12) dictum, ' Hun- but the co-operation of other circum-
dert Jahre Unrecht ist noch kein stances and influences which creates
Tag Recht,' is met by the fact that the title by prescription,
it is not the operation of time alone, ' See above, §§ 171 and 216.
404
5TATE TFTRRTTOBY
Operation § 245. Operation of nature as a mode of losing tem-
tory conesponds to accretion as a mode of acquiring it.
Just as thiougli accretion a State may be enlajged, so it
may be diminished through the disappeatance of land
and other operations of nature. And the loss of tesn-
tory through operation of nature takes place ipso fado
by such operation. Thus, if an island near the shore
disappears through volcanic action, the extent of the
maritime territorial belt of the respective littoral State
is thereafter to be measured from the low-water Tnark
of the shore of the continent, instead of from the shore
of the former island. Thus, further, if throng a piece
of land being detached by the current of a river from
one bank and carried over to the other bank, the rivEF
alters its course and now covers part of the land on the
bank from which such piece became detached, the
territory of one of the riparian States may be decreased
through the bonndary line being ipso fado transferred
to the new middle or mid-channel of the river.
Revolt § 246. Revolt followed by secession is a mode of
losing territory to which no mode of acquisition corre-
sponds.^ But as history teaches, it has frequently been
a cause of loss of territory. Thus the Netherlands fell
away from Spain in 1-579, Bel^um from the Xether-
lands in 1830, the United States of America from Great
Britain in 1776, BrazQ from Portugal in 1822, the former
Spanish South American States from Spain in 1810,
Greece from Turkey in 1830, Cuba from Spain in 1898,
Panama from Colombia in 1903. The question at what
time a loss of territory through revolt is consummated
cannot be answered once for all, sin(« no hard and fast
rule can be laid down r^arding the time when a State
' The po^ble case wliere a pro- ocsqner it, unites itself -with tlie
vinoe revolts, secedes from the tenitorr ai another State, is a ease
motlier ooantzy, and, after having of merger by oeBsi<Hi d the whole
snooes^nlly d^ended itself against territory,
the attempts of the latter to re-
LOSS OF STATE TERRITORY 405
which has broken off from another can be said to have
established itself safely and permanently.^ It may well
happen that, although such a seceded State has aLready
been recognised by a third Power, the mother country
does not consider the territory to be lost, and succeeds
in reconquering it.
§ 247. DereUction as a mode of losing territory corre- DereUe-
sponds to occupation as a mode of acquiring it. Dere- *'°°"
Uction frees a territory from the sovereignty of the
present owner-State. It is effected through the owner-
State completely abandoning territory with the inten-
tion of withdrawing from it for ever, thus rehnquishing
sovereignty over it. Just as occupation ^ requires, first,
the actual taking into possession (corpm) of territory,
and, secondly, the intention (animus) of acquiring sove-
reignty over it, so dereKction requires, first, actual
abandonment of a territory, and, secondly, the inten-
tion of giving up sovereignty over it. Actual abandon-
ment alone does not involve dereliction as long as it
must be presumed that the owner has the will and ability
to. retake possession of the territory. Thus, for in-
stance, if the rising of natives forces a State to withdraw
from a territory, such territory is not dereHct as long
as the former possessor is able, and makes efforts, to
retake possession. It is only when a territory is really
dereHct that any State may acquire it through occupa-
tion.3 History knows of several such cases. But very
often, when such occupation of derehct territory occurs,
the former owner protests, and tries to prevent the new
occupier from acquiring it. The cases of the island of
Santa Lucia and of Delagoa Bay may be quoted as
illustrations :
(a) In 1639 Santa Lucia, one of the Antilles Islands,
* The matter has, as will be re- ' See above, § 222.
membered, been treated above (§ 74),
in oonnection with recognition, ' See above, § 228.
406 STATE TERRITORY
was occupied by England, but in the following year
the EngHsh settlers were massacred by the natives.
No attempt was made by England to retake the island,
and France, considering it no man's land, took posses-
sion of it in 1650. In 1664 an Enghsh force under Lord
Willoughby attacked the French, drove them into the
mountains, and held the island until 1667, when the
Enghsh withdrew, and the French returned from the
mountains. No further step was made by England to
retake the island, but she nevertheless asserted for
many years to come that she had not abandoned it
sine spe redeundi, and that, therefore, France in 1650
had no right to consider it no man's land. Finally,
however, she resigned her claims by the Peace Treaty
of Paris of 1763.i
(6) In 1823 England occupied, in consequence of a
so-called cession from native chiefs, a piece of territory
at Delagoa Bay, which Portugal claimed as part of the
territory owned by her at the bay, maintaining that the
chiefs concerned were rebels. The dispute was not
settled until 1875, when the case was submitted to
the arbitration of the President of France. The award
was given in favour of Portugal, since the interruption
of the Portuguese occupation in 1823 was not to be
considered as abandonment of a territory over which
Portugal had exercised sovereignty for nearly three
hundred years.^
' See Hall, § 34, and Moore, i. award is printed in Moore, Arhitra-
§ 89. tians, v. p. 4984.
' See Hall, § 34. The text of the
CHAPTER II
THE OPEN SEA
I
RISE OP THE FREEDOM OP THE OPEN SEA
Grotius, ii. o. 2, § 3— Pufendorf, Iv. o. 5, § 5— Vattel, i. §§ 279-286— Hall,
§ 40— Westlake, i. pp. 164-167— Phillimore, i. §§ 172-179— Taylor, §§242-
246— Walker, Science, pp. 163-171— Wheaton, §§ 186-187— Hershey,
No. 202— Hartmann, § 64— Heffter, § 73— Stoerk in HoUzendorff, ii.
pp. 483-492— Bonfils, Nos. 572-576 — Despagnet, No. 401— Pradier-
Pod6r6, ii. Nos. 871-874— Nys, ii. pp. 171-177— MArignhao, ii. pp. 498-
505— Calvo, i. §§ 347-352— Fiore, ii. Nos. 718-727— Martens, i. § 97—
Perels, § 4 — Amni, Diritto maritimo (1796), i. o. 1. Article 3 — Reddie,
Betearchei . . . in Maritime Intemationai Law, i. (1844), pp. 79-
111 — Cauohy, Le Droit mantime irUemational consid^rd dans ses Originea,
2 vols. (1862) — Nys, Les Originea du Droit intemationai (1894), pp. 379-
387 — Castel, Du Principe de la Libertd det Mere (1900), pp. 1-15 — Pulton,
The Sovereignty of the Seas (1911) pp. 1-56— Stier-Sbmlo, Die Freiheit
der Meere und das Volkerrecht (1917), pp. 34-59.
§ 248. In antiquity and the first half of the Middle Former
Ages, navigation on the open sea was free to everybody. conSoi*"
According to Ulpianus,^ the sea is open to everybody by qvertue
nature, and, according to Celsus,^ the sea, Uke the air,
is common to all mankind. Since no Law of Nations
in the modern sense of the term existed during anti-
quity and the greater part of the Middle Ages, no im-
portance is to be attached to the pronouncement of
Antoninus Pius, Roman Emperor from 138 to 161 : —
' Being ^ the Emperor of the world, I am consequently
' L. 13, pr. D. viii. 4 : mari quod munem usum omnibus hominibus ut
natura omnibus patet. aeris.
' L. 9, D. xiv. 2 : iyi> fiiv toS
' L. 3, D. xliii. 8 : Maris com- xtxtum xipios, i Si yiitoi t^s 9aXd<r(ri)!.
407
408
THE OPEN SEA
the law of the sea.' Nor is it of importance that the
Emperors of the old German Empire, who were con-
sidered to be the successors of the Koman Emperors,
styled themselves among other titles ' King of the
Ocean.' Eeal claims to aovereignty over parts of the
open sea begin, however, to be made in the second
half of the Middle Ages. And there is no doubt what-
ever that, at the time when the modern Law of Nations
gradually rose, it was the conviction of the States that
they could extend their sovereignty over certain parts
of the open sea. Thus the Repubhc of Venice was
recognised as the sovereign over the Adriatic Sea, and
the Republic of Genoa as the sovereign of the Ligurian
Sea. Portugal claimed sovereignty over the whole of
the Indian Ocean and of the Atlantic south of Morocco,
and Spain over the Pacific and the Gulf of Mexico, both
basing their claims on two Papal Bulls promulgated by
Alexander vi. in 1493, which divided the New World
between these Powers. Sweden and Denmark claimed
sovereignty over the Baltic, and Great Britain over the
Narrow Seas, the North Sea, and the Atlantic from the
North Cape to Cape Finisterre.
These claims were more or less successfully asserted
for several hundreds of years. They were favoured by
a number of different circumstances, such as for instance
the maintenance of an effective protection against piracy;
and numerous examples can be adduced which show
that they were more or less recognised. Thus Frederick
III., Emperor of Germany, had in 1478 to ask the per-
mission of Venice for a transportation of corn from
Apuha through the Adriatic Sea.^ Again, Great Britain,
in the seventeenth century, compelled foreigners to
take out an English Hcence for fishing in the North Sea ;
and when in 1636 the Dutch attempted to fish without
such licence, they were attacked, and compelled to
1 See Walker, History, i. p. 163.
RISE OF THE FREEDOM OF THE OPEN SEA 409
pay £30,000 as the price for the indulgence.^ Again,
when Phihp ii. of Spain was in 1554 on his way to
England to marry Queen Mary, the British admiral,
who met him in the ' British Seas,' fired on his ship for
flying the Spanish flag. And the King of Denmark,
when returning from a visit to James i. in 1606, was
forced by a British captain, who met him ofE the mouth
of the Thames, to strike the Danish flag.
§ 249. Maritime sovereignty found expression in Praotioai
maritime ceremonials at least. Such State as claimed sion'rf
sovereignty over a part of the open sea required foreign ^^^ji^j^°
vessels navigating that part to honour its flag ^ as a Sove-
symbol of recognition of its sovereignty. So late as ^^'^"
1805 the British Admiralty Regulations contained an
order ^ to the effect that ' when any of His Majesty's
ships shall meet -with the ships of any foreign Power
within His Majesty's seas (which extend to Cape Finis-
terre), it is expected that the said foreign ships do strike
their topsail and take in their flag, in acknowledgment
of His Majesty's sovereignty in those seas ; and if any
do resist, all flag officers and commanders are to use
their utmost endeavours to compel them thereto, and
not suffer any dishonour to be done to His Majesty.'
But apart from maritime ceremonials, maritime sove-
reignty also found expression in the levying of tolls
from foreign ships, in the interdiction of fisheries to
foreigners, and in the control, or even the prohibition, of
foreign navigation. Thus Portugal and Spain attempted,
after the discovery of America, to keep foreign vessels
altogether out of the seas over which they claimed
sovereignty. The magnitude of this claim created an
opposition to the very existence of such rights. Enghsh,
French, and Dutch explorers and traders navigated on
} This and the two following ' See Fulton, The Sovereignty of
examples are quoted by Hall, the Seas (1911), pp. 39 and 204-208,
§ 40. = Quoted by Hall, § 40.
410 THE OPEN SEA
the Indian Ocean and the Pacific, in spite of the Spanish
and Portuguese interdictions. And when, in 1580,
the Spanish ambassador Mendoza lodged a complaint
with Queen Elizabeth against Drake for having made
his famous voyage to the Pacific, Elizabeth answered
that vessels of all nations could navigate on the Pacific,
since the use of the sea and the air is common to aU,
and that no title to the ocean can belong to any nation,
since neither nature nor regard for the pubUc use permit
any possession of the ocean.^
Grotius' s 250. Queen EUzabeth's attitude was the germ out
Attack on J* "^ , t r i
Maritime of which grcw gradually the present freedom of the
rei^ty. opcu sca. Twenty-niue years after her answer to
Mendoza, in 1609, appeared Grotius' short treatise ^
Mare l^berum. His intention was to show that the
Dutch had a right of navigation and commerce with the
Indies, in spite of the Portuguese interdictions. He
contended that the sea cannot be State property, because
it cannot really be taken into possession through occu-
pation,^ and that consequently the sea is by nature free
from the sovereignty of any State.* The attack of
Grotius was met by several authors of different nations.
Gentilis defended Spanish and English claims in his
Advocatio Hispanica,^ which appeared, after his death,
in 1613. Likewise, in 1613, WiUiam Welwood defended
the EngUsh claims in his book, De Dmninio Maris. John
' See Walker, History, i. p. 161. ' Its full title is : Mare liberum
It is obvious that this attitude of sen de Jure quod Batavis competit ad
Queen Elizabeth was in no way the indicana Oommercia Distertatio, and
outcome of the conviction that really it is now proved that this short
no State could claim sovereignty over treatise is only chapter 12 of another
a part of the open sea. For she work of Grotius, De Jure Praedae,
herself did not think of dropping which was found in manuscript in
the British claims to sovereignty 1864 and published in 1868. See
over the 'British Seas.' Her argu- above, §53.
ments against the Spanish claims ' See below, § 259.
were made in the interest of the ' Grotius was by no means the
growing commerce and navigation first author who defended the freedom
of England, and any one daring to of the sea. See Nys, Lei Origines dn
apply the same arguments against Droit international, pp. 38 1 and 382.
England'solaims would have incurred ' See Abbott in A. J., x. (1916),
her royal displeasure. pp. 737-748.
KISB OP THE PEEEDOM OP THE OPEN SEA 411
Selden wrote his Mare clausum sive de Dominio Maris in
1618, but it was not printed until 1635. Sir John
Buroughs wrote in 1633 his book, The Sovereignty of the
British Seas proved by Records, History, and the Municipal
Laws of this Kingdom, but it was not pubhshed until
1651. In defence of the claims of the Republic of
Venice, Paolo Sarpi published in 1676 his book Del
Dominio del Mare Adriatico. The most important of
these books defending maritime sovereignty is that of
Selden. King Charles i., by whose command Selden's
Mare clausum was printed in 1635, was so much im-
pressed by it that, through his ambassador in the
Netherlands, he complained of the audacity of Grotius
and requested that the author of the Mare liberum should
be punished.^
The general opposition to the bold attack of Grotius
on maritime soverbignty prevented his immediate
victory. Too firmly established were the claims then
recognised to sovereignty over certain parts of the open
sea for the novel principle of the freedom of the sea
to supplant them. Progress was made regarding one
point only — ^namely, freedom of navigation of the sea.
England had never pushed her claims so far as to attempt
the prohibition of free navigation on the so-called British
Seas. And although Venice succeeded in keeping up
her control of navigation on the Adriatic till the middle
of the seventeenth century, it may be said that in the
second half of that century navigation on all parts of
the|[openJsea|was'fpractically free for vessels of all
nations. But with regard to other points, claims to
maritime sovereignty continued to be kept up. Thus
the Netherlands had by Article 4 of the Treaty of West-
minster, 1674, to acknowledge that their vessels had
to salute the British flag within the ' British Seas '
as a recognition of British maritime sovereignty.^
' See PhiUimore, i. § 182. ' See Hall, § 40, p. 149, n. 4.
412 THE OPEN SEA
Gradual § 251. In spite of opposition, the work of Grotius
tionrf" he was not to be undone. All prominent writers of the
o/ the"" eighteenth century took up again the case of the freedom
Open Sea. of the Open sea, making a distinction between the mari-
time belt which is to be considered under the sway of
the littoral States, and the high seas, which are under
no State's sovereignty. The leading author was Bynker-
shoek, whose standard work, DeDominio Maris, appeared
in 1702. Vattel, G. F. de Martens, Azuni, and others
followed the lead. And although Great Britain upheld
her claim to the salute due to her flag within the 'British
Seas ' throughout the eighteenth and at the beginning
of the nineteenth centuries, the principle of the freedom
of the open sea became more and more vigorous with
the growth of the navies of other States ; and at the
end of the first quarter of the nineteenth century it
became universally recognised in theory and practice.
Great Britain silently dropped her claim to the salute,
and with it her claim to maritime sovereignty, and she
became now a champion of the freedom of the open
sea. When, in 1821, Russia, which then stiU owned
Alaska in North America, attempted to prohibit aU
foreign ships from approaching within one hundred
ItaHan miles of the shore of Alaska, Great Britain and
the United States protested in the interest of the freedom
of the open sea, and Russia dropped her claims in con-
ventions concluded with the protesting Powers in 1824
and 1825. Moreover, when, after Russia had sold
Alaska in 1867 to the United States, the latter made
regulations regarding the killing of seals within Behring
Sea, claiming thereby jurisdiction and control over a
part of the open sea, a conflict arose in 1886 with Great
Britain, which was settled by arbitration^ in 1893 in
favour of the freedom of the open sea.
> See below, § 284.
CONCEPTION OF THE OPEN SEA 4l3
II
CONCEPTION OF THE OPEN SEA
Field, Article 53— Westlake, i. p. 164— Moore, ii. § 308— Rivier, i. pp. 234-
235— Pradier-Foddrd, ii. No. 868— UUmann, § 101— Stoerk in Holtzen-
dorff, ii. p. 483.
§ 252. The open sea or the high seas ^ is the coherent Diaorimi-
body of salt water all over the greater part of the globe, between
with the exception of the maritime belt and the terri- Open Sea
torial straits, guUs, and bays, which are parts of the toriai
sea, but not parts of the open sea. Wherever there is **^"'
a salt-water sea on the globe, it is part of the open sea,
provided it is not isolated from, but coherent with, the
general body of salt water extending over the globe,
and provided that the salt-water approach to it is navig-
able and open to Vessels of all nations. The enclosure
of a sea by the land of one and the same State does not
matter, provided such a navigable connectionof saltwater
as is open to vessels of all nations exists between such sea
and the general body of salt water, even if that navigable
connection itself be part of the territory of one or more
httoral States. Whereas, therefore, in 1914 ^ the Dead
Sea was Turkish and the Aral Sea was Russian territory,
the Sea of Marmora was part of the open sea, although
surrounded by Turkish land, and although the Bos-
phorus and the Dardanelles were Turkish territorial
straits, because these were open to merchantmen of all
nations.^ On the other hand, the Sea of AzofE was not
part of the open sea, but Eussian territory, although
there existed a navigable connection between it and the
Black Sea. The reason was that this connection, the
' Field defines in Article 53 : ' The ' The Turkish settlement was still
high seas are the ocean, and all underoonsiderationwhen this volume
connecting arms and bays or other ex- went to press. No progress had been
tensions thereof, not within the terri- made with the settlement of Russia,
torial limits of any nation whatever.' ' See above, § 197,
414
THE OPEN SEA
Strait of Kertch, was not according to the Law of
Nations open to vessels of all nations, since tlie Sea of
AzofE is less a sea than a mere gulf of the Black Sea.^
The character of the Inland Sea of Japan ^ is doubtful.
Its three entrances, which are less than three miles
wide, are indeed in practice open to merchantmen of
all nations, but it is not known whether this practice
is based upon comity only, or upon a customary rule
of International Law. Moreover, geographically con-
sidered, this sea is more Uke a vast bay. The claim of
Japan to its territorial character would therefore,
perhaps, not be disputed by other States.
Clear In- § 253. It is not necessary or possible to particularise
stances of ,. p ii tj • m ' i i '
Parts of every portion oi the open sea. it is sumcient to give
Sea°^^° instances which clearly indicate its extent. To the
open sea belong, of course, all the so-caUed oceans —
namely, the Atlantic, Pacific, Indian, Arctic, and Ant-
arctic. But the branches of the oceans, which go under
special names, and, further, the branches of these
branches, which again go imder special names, belong
Ukewise to the open sea. Examples of these branches
are : the North Sea, the Bnghsh Channel, and the Irish
Sea ; the Baltic Sea, the GuH of Bothnia, the Gulf of
Finland, the Kara Sea,^ and the White Sea ; the Medi-
terranean and the Ligurian, Tyrrhenian, Adriatic,
Ionian, Marmora, and Black Seas ; the Gulf of Guinea ;
the Mozambique Channel ; the Arabian Sea and the
Eed Sea ; the Bay of Bengal, the China Sea, the GuU of
Siam, and the Gulf of Tonking ; the Eastern Sea, the
Yellow Sea, and the Sea of Okhotsk ; the Behring Sea ;
the Gulf of Mexico and the Caribbean Sea ; Bafl&n's Bay.
' So say Rivier, i. p. 235, and tal Steam Navigation Co., \\6^5'\ii..C
Martens, i. § 97 ; but Stoerk in 644, and Piggott, Nationality, p. 29.
HoUzendoirff, ii. p. 513, declared that
the Sea of Azoff was part of the ' The assertion of some Russian
open sea. publicists that the Kara Sea is
' See The Invperial Jaj>ameae Russian territory is refuted by
Omemnient v. Penintuiar aiui Orien- Martens, i. § 97.
THE FREEDOM OF THE OPEN SEA 415
It will be remembered that it is doubtful as regards
many gulfs and bays whether they belong to the open
sea or are territorial.^
Ill
THE FREEDOM OF THE OPEN SEA
Hall, § 75— Westlake, i. pp. 164-170— Lawrence, § 100— Twias, i. §§ 172-173
—Moore, ii. §§ 309-310— Taylor, § 242— Wheaton, § 187— Hershey,
Nos. 203-206— Bluntschli, §§ 304-308— Heffter, § 74— Stoerk in HoUzen-
dorf, ii. pp. 483-498— UUmann, § 101— BonfiU, Noa. 572-577— Pradjer-
Fod6r6, ii. Nob. 874-881— Eivier, i. § 17— Nys, ii. pp. 178-205— Calvo,
i. § 346— Fiore, ii. Nos. 724, 727, and Code, Nos. 933-935— Martens, i.
§ 97 — Perels, § 4 — Testa, pp. 63-66 — Ortolan, Diplomatie de la Mer
(1856), i. pp. 119-149 — De Burgh, Elements of Maritime Intemaiional
Law (1868), pp. 1-24 — Castel, DuPrincipe de la Libertd des Mert (1900),
pp. 37-80.
§ 254, The term ' Freedom of the Open Sea ' indi- Meaning
cates the rule of the Law of Nations that the open sea Term
is not, and never can be, under the sovereignty of any 'Freedom
State whatever. Since, therefore, the open sea is not open
the territory of any State, no State has as a rule a right ^^^''
to exercise its legislation, administration, jurisdiction,^
or pohce ^ over parts of the open sea. Since, further,
the open sea can never be under the sovereignty of any
State, no State has a right to acquire parts of the open
sea through occupation,^ for, as far as the acquisition
of territory is concerned, the open sea is what Roman
• See above, § 191. any part of the open sea covered for
' As regards jurisdiction in cases *•*« *™® ^y * vessel is by occupation
of collision and salvage on the open *° ^^ considered as the temporary
sea, see below, §§ 265 and 271. territory of the vessel's flag State.
, „ , , „ ,„„ And some French writers go even
See, however, above, § 190, con- beyond that and claim a certain zone
oerning the zone for Revenue and j.^^^ the respective vessel as tem-
Sanitary Laws. porary territory of the flag State.
* Following Grotius (ii. c. 3, § 13) But this is an absolutely superfluous
andBynkershoek(2>ei)omtmoilfa»-t8, fictipn. (See Stoerk in ^^oZtecrador^,
0. 3), some writers (for instance, ii. p. 494 ; Rivier, i. p. 238 ; Perels,
Phillimore, i. § 203) maintain that pp. 37-39.)
416
THE OPEN SEA
Law calls res extra commercium.^ But although the
open sea is not the territory of any State, it is never-
theless an object of the Law of Nations. The mere fact
that there is a rule exempting the open sea from the
sovereignty of any State whatever ^ shows this. But
there are other reasons. For if the Law of Nations
were to content itself with the rule which excludes the
open sea from possible State property, the consequence
would be a condition of lawlessness and anarchy on the
open sea. To obviate such lawlessness, customary
International Law contains some rules which guarantee
a certain legal order on the open sea, in spite of the
fact that it is not the territory of any State ; and im-
portant international conventions have been concluded
with the same object.
Legal § 255. Apart from the rules contained in the con-
Provisions ,. ,. , ., ^^^ ■ i
for the ventions regarding salvage, assistance, collisions and
Open Sea. g^fety of life at sea, which are discussed below,^ this
legal order is created through the co-operation of the
Law of Nations and the Municipal Laws of such States
as possess a maritime flag. The following rules of the
Law of Nations are universally recognised, namely :
first, that every State which has a maritime flag must
lay down rules according to which vessels can claim to
sail under its flag, and must furnish such vessels with
some official voucher authorising them to make use
of its flag ; secondly, that every State has a right to
punish all such foreign vessels as sail under its flag
without being authorised to do so; thirdly, that all
vessels with their persons and goods are, whilst on the
open sea, considered under the sway of the flag State ;
fourthly, that every State has a right to punish piracy
' But the subsoil of the bed of the * The assertion of Stier - Somlo,
open sea can, through driving mines op. cit. , p. 59, that this rule is not
and piercing tunnels from the coast, one of customary International Law,
be acquired by a littoral State. See but only a rule of comity, is absolutely
above, § 221, and below, §§ 287c and unfounded.
281d. ' See §§ 265, 271, 594.
THE FREEDOM OP THE OPEN SEA 417
on the open sea even if committed by foreigners, and
that, with a view to the extinction of piracy, men-of-war
of all nations can require all suspect vessels to show
their flag.
These customary rules of International Law are, so
to say, supplemented by Municipal Laws of the mari-
time States comprising provisions, first, regarding the
conditions to be fulfilled by vessels for the purpose of
berag authorised to sail under their flags ; secondly,
regarding the details of jurisdiction over persons and
goods on board vessels saihng under their flags ; thirdly,
concerning the order on board ship and the relations
between the master, the crew, and the passengers ;
fourthly, concerning punishment of ships sailing with-
out authorisation under their flags.
§ 256. Although the open sea is free, and is not the Freedom
territory of any State, it may nevertheless, in its whole open^Sea
extent, become the theatre of war, since the region ^^^ '^^^■
of war is not only the territories of the belUgerents,
but likewise the open sea, provided that one of the
belligerents at least is a Power with a maritime flag.^
Men-of-war of the beUigerents may fight a battle in any
part of the open sea where they meet, and they may
capture all enemy merchantmen they meet on the
open sea. And, further, the jurisdiction and pohce of
the beUigerents become, through the outbreak of war,
in so far extended over vessels of other States, that
belligerent men-of-war may now visit, search, and
captm-e neutral merchantmen for breach of blockade,
contraband, and the hke.
However, certain parts of the open sea can become
neutralised, and thereby be excluded from the region
of war. Thus the Black Sea became neutrahsed in
1856 through Article 11 of the Peace Treaty of Paris
* Concerning the distinction between theatre and region of war, see
below, vol. ii. §j70.
VOL. I. 2d
418
THE OPEN SEA
stipulating : ' La Mer Noire est neutralisee : ouverte
a la marine marchande de toutes les nations, ses eanx
et ses ports sont formellement et a perpetuity interdits
au pavilion de guerre, soit des puissances riveraines,
soit de toute autre puissance.' Yet this neutralisation
of the Black Sea was abolished ^ in 1871 by Article 1
of the Treaty of London, and no other part of the open
sea is at present neutrahsed.
Naviga- § 257. The freedom of the open sea involves perfect
Cere-'*" freedom of navigation for vessels of all nations, whether
moniais ruen-of-war, other public vessels, or merchantmen. It
on the 11
Open Sea. involves, further, absence of compulsory maritime cere-
monials on the open sea. According to the Law of
Nations, no rights whatever of salute exist between
vessels meeting on the open sea. All so-called mari-
time ceremonials on the open sea ^ are a matter, either
of courtesy and usage, or of special conventions and
MiSucipal Laws of those States under whose flags vessels
sail. In particular, no State has any right to require
a salute from foreign merchantmen for its men-of-war.^
The freedom of the open sea involves Ukewise freedom
of inoffensive passage * through the maritime belt for
merchantmen of all nations, and also for men-of-war
of all nations, in so far as the part- of the maritime belt
concerned forms a part of the highways for international
traflSiC. Without such freedom of passage, navigation
on the open sea by vessels of all nations would be a
physical impossibility.
Claim of § 258. Siuce no State can exercise protection over
Maritime vessels that do not sail under its flag, and since every
Flag- vessel must, in the interest of the order and safety of
the open sea, sail under the flag of a State, the question
' See above, § 181. merchantmen to show their flags has
* But not within the maritime belt nothing to do with ceremonials, but
or other territorial waters. See with the supervision of the open sea
above, §§ 122 and 187. in the interest of its safety. See
' That men-of-war can on the below, § 266.
open sea ask suspicious foreign ' See above, § 188.
THE FEEEDOM OF THE OPEN SEA 419
was discussed before the World War, whether, not only
maritime States, but also States with no sea-coasts
could claim a maritime flag. At that time no State
without a seaboard actually had a maritime flag, and
all vessels belonging to its subjects sailed under the flag
of a maritime State. The question was discussed, in
particular, in Switzerland. In 1864, 1874, 1889 and
1891, Swiss merchants in foreign ports appUed to the
Swiss Bundesrath for permission for their vessels
to sail under the Swiss flag ; but the Swiss Govern-
ment refused to have a maritime flag,^ though it
had no doubt that it had a claim to such flag, because it
was aware of the difficulties arising from the fact that,
as Switzerland had no seaports of her own, vessels sail-
ing under her flag would in many points have to depend
upon the goodwill of the maritime Powers.^
The author did not doubt that the freedom of
the open sea involved a claim of any State to a
maritime flag ; ^ and since the World War, by the
Treaties of Peace, ^ the High Contracting Parties have
agreed to recognise the flag flown by the vessels of
an Allied or Associated Power having no sea-coast,
but registered at a place within its territory serving
as a port of registry.
Such States as have a maritime flag as a rule have
a war flag difierent from their commercial flag ; some
States, however, have one and the same flag for both
their navy and their mercantile marine. But it must
be mentioned that a State can by an international
convention be restricted to, a mercantile flag only, such
State being prevented from having a navy. This was
' See Huber, Die rechtlichen Ver- thoroughly by Huber, op. dt.,
hdltmisseeiTierSchweizerischenMeeres- pp. 5-21.
tchiffahrt wnter Schweizer Magge ' See Huber, op. cit., pp. 5-11,
(1918), pp. 3-5. who agreed, and Westlake, i. p. 169,
* The question is discussed by who dissented.
Calvo, i. § 427 ; Twiss, i. §§ 197 and * e.g. Treaty of Peace with Ger-
198 ; Westlake, i. p. 169 ; and many. Article 273.
420
THE OPEN SEA
formerly the position of Montenegro^ according to
Article 29 of the Treaty of BerHn of 1878.
The Dominions of Canada, Australia, and New Zealand
have a maritime flag which is a modification of the
British flag.^
Rationale § 259. Grotius and many writers who follow ^ him
Freedom cstabhsh two facts as the reason for the freedom of the
0 en^Sea ^V^^ ^^^- They maintain, first, that a part of the
open sea could not be effectively occupied by a navy,
and could not therefore be brought under the actual
sway of any State ; secondly, that nature does not give
a right to anybody to appropriate such things as may
inoffensively be used by everybody and are inexhaustible,
and, therefore, sufficient for all.* The last argument
has nowadays hardly any value, especially for those
who have freed themselves from the fanciful rules of the
so-called Law of Nature. And the first argument is
now without basis in face of the development of the
modern navies, since the niunber of pubhc vessels which
the different States possess at present would enable
many a State to occupy effectively one part or another
of the open sea. The real reason for the freedom of
the open sea is represented in the motive which led to
the attack against maritime sovereignty, and in the
purpose for which such attack was made — namely, the
freedom of communication, and especially commerce,
between the States which are severed by the sea. The
sea being an international highway which connects
distant lands, it is the common conviction that it should
not be under the sway of any State whatever. It is in
' See above, § 127, but it was waters were no longer closed to men-
doubtful before the World War of -war of all nations. See B.G.,
whether this restriction was still in xvii. (1910), pp. 173-176.
existence, since Article 29 was, after ^ See above, § 94a, and Ewart in
the annexation of Bosnia and Herze- A.J., vii. (1914), pp. 780-783.
govina by Austria in 1908, modified ^ See, for instance, Twiss, i. § 172,
by the Powers, so that the port of and Westlake, i. p. 160.
Antivari and the other Montenegrin •■ See Grotius, ii. c. 2, § 3.
JUEISDICTION ON THE OPEN SEA 421
the interest of free intercourse ^ between the States that
the principle of the freedom of the open sea has become
universally recognised and will always be upheld.^
IV
JURISDICTION ON THE OPEN SEA
Vattel, ii. § 80— Hall, § 45— Westlake, i. pp. 170-180— Lawrence, § 100—
Halleok, p. 438— Taylor, §§ 262-267— Walker, § 20— Hershey, Nos. 207-
210— Wheaton, § 106— Moore, ii. §§ 309-310— Bluntsohli, §§ 317-352—
Heffter, §§ 78-80— Stoerk in HoUzevdorff, ii. pp. 518-550— Liszt, § 26—
BonfilB, Nos. 578-580, 597-613— Despagnet, Nos. 422-430— M6rignhao,
ii. pp. 536-553— Pradier-Fod^rS, v. Nos. 2376-2470— Rivier, i. § 18—
Nys, ii. pp. 178-215— Calvo, i. §§ 385-473— Kore, ii. Nos. 730-742, and
Code, Nos. 1006-1032— Martens, ii. §§ 55-56— Perels, § 12— Testa, pp.
98-112— Ortolan, Diplomatie de la Mer (1856), i. 254-325— Hall, Foreign
Powers wad Jurisdiction of the British Crown (1894), §§ 106-109.
§ 260. Jurisdiction on the open sea is in the main Jurisdio-
connected with the niaritime flag under which vessels the Open
sail. This is the consequence of the fact stated above ^ ^Tiniy
that a certain legal order is created on the open sea oonneoted
through the co-operation of rules of the Law of Nations Flag.
with rules of the Municipal Laws of such States as
possess a maritime flag. But two points must be em-
phasised. The one is that this jurisdiction is not juris-
diction over the open sea as such, but only over vessels,
persons, and goods on the open sea. And the other
is that jurisdiction on the open sea is, although mainly,
not exclusively connected with the flag under which
vessels sail, because men-of-war of all nations have, as
will be seen,* certain powers over merchantmen of
aU nations. The points which must therefore be here
discussed singly are : the claim of vessels to sail under
' See above, § 142. certain parts o£ the open sea. See
' Oonneoted with the reason for Pradier-Fod^rd, ii. Nos. 881-885,
the freedom of the open sea is the where this point is exhaustively
merely theoretical question whether discussed.
the vessels of a State could, through 3 g^^ ^y^ g 255.
an international treaty, be prevented
from navigating on the whole or on * See below, § 266.
422
THE OPEN SEA
a certain flag, ship papers, the names of vessels, the
connection of vessels with the territory of the flag
State, the safety of traffic on the open sea, the powers
of men-of-war over merchantmen of all nations, and,
lastly, shipwreck,
caaimof §261. The Law of Nations does not include any
saUunder rules regarding the claim of vessels to sail under a certain
a certain maritime flag, but imposes the duty upon every State
having a maritime flag to stipulate by its own Municipal
Laws the conditions to be fulfilled by those vessels which
wish to sail under its flag. In the interest of order on
the open sea, a vessel not sailing under the maritime
flag of a State enjoys no protection whatever, for the
freedom of navigation on the open sea is freedom for
such vessels only as sail under the flag of a State. But
a State is absolutely independent in framing the rules
concerning the claim of vessels to its flag. It can in
particular authorise such vessels to sail under its flag
as are the property of foreign subjects ; but such foreign
vessels sailing under its flag fall thereby under its juris-
diction. The different States have made different rules
concerning the sailing of vessels imder their flags.^ Some,
as Great Britain ^ and Grermany,^ allow only such vessels
to sail under their flags as are the exclusive property of
their citizens or of corporations established on their
territory. Others, as Argentina, allow vessels which
are the property of foreigners. Others again, as France,^
aUow vessels which are only in part the property of
French citizens.^
* See Calvo, i. §§ 393-423, where * The Institute of International
the respective Municipal Laws of Law adopted, at its meeting at
most countries are given. Venice — see Annuaire, xv. (1896),
^ See § 1 of the Merchant p. 201— in 1896, a body of ten
Shipping Act, 1894 (57 & 58 rules concerning the sailing of
Vict. 0. 60), and §§ 51 and 80 of merchantmen under the maritime
the Merchant Shipping Act, 1906 flag of a State under the heading :
(6 Edw. VII. 0. 48). ' Ragles relatives k I'Usage du
' At any rate, before the World PaviUon national pour les Navires
War. de Commerce.'
JURISDICTION ON THE OPEN SEA 423
But no State can allow a vessel to sail under its flag
which already sails under the flag of another State.
A vessel sailing under the flags of two different States,
like a vessel not sailing under the flag of any State, does
not enjoy any protection whatever. Nor is protection
enjoyed by a vessel saihng under the flag of a State
which has no maritime flag.^ Vessels belonging to
subjects of such a State must obtain authority to sail
under the flag of another State, if they wish to enjoy
protection on the open sea.^ And any vessel, although the
property of foreigners, which sails without authority under
the flag of a State, may be captured by the men-of-war
of such State, prosecuted, punished, and confiscated.^
§ 262. All States with a maritime flag are by the Ship
Law of Nations obUged to make private vessels sailing *^^'^°'
under their flags carry on board so-called ship papers,
which serve the purpose of identification on the open
sea. But neither the number, nor the kind, of such
papers is prescribed by International Law, and the
Municipal Laws of the different States differ much on
this subject.^ They do, however, agree to the following
papers :
(1) An ofl&cial voucher authorising the vessel to sail
under its flag. This voucher consists of a Certificate of
Registry, in case the flag State possesses, like Great
Britain and Germany for instance, a register of its mer-
cantile marine ; in other cases the voucher consists
of a Passport, Sea-letter, Sea-brief, or of some other
document serving the purpose of showing the vessel's
nationaUty.
(2) The Muster Roll. — This is a Ust of all the members
of the crew, their nationaUty, and the like.
' But see above, § 258. " See Holland, Manval of Naval
' See the case of The Steamship Prize Law, §§ 178-194, where the
Maori King, [1909] A.C. 562, and §§ papers required by the different
69 and 76 of the Merchant Shipping maritime States are enumerated.
Act, 1894 (57 & 58 Viot. o. 60).
424 THE OPEN SEA
(3) The Log Booh— This, is a full record of the voyage,
with all nautical details.
(4) The Manifest of Cargo.— This is a Ust of the cargo
of a vessel, with details concerning the number and the
marking of each package, the names of the shippers
and the consignees, and the hke.
(5) The Bills of Lading. — These are duplicates of
the documents which the master of the vessel hands
over to the shipper of the goods on shipment.
(6) If the vessel is chartered, the Charter Party.
This is the contract between the owner of the ship,
who lets it wholly or in part, and the charterer, who
hires it.
Names of § 263. Every State must register the names of all
esse s. pj.jyg^^g vessels saihug under its flag, and it must make
them bear their names visibly, so that every vessel may
be identified from a distance. No vessel must be
allowed to change her name without permission and
fresh registration.^
Terri- § 264. It is a customary rule of the Law of Nations
Quajity of *^^* meu-of-war and other public vessels of any State
Vessels on are, whilst on the open sea as well as in foreign terri-
Sea. torial waters, in every point considered as though they
were floating parts of their home States.^ Private
vessels are only considered as though they were floating
portions of the flag State in so far as they remain whilst
on the open sea in principle under the exclusive juris-
diction of the flag State. Thus the birth of a child,^ a
will or business contract made, or a crime * committed
on board ship, and the like, are considered as happening
on the territory, and therefore under the territorial
' As regards Great Britain, see ' Manhcdl v. Mwrgairoyd, (1870)
§§ 47 and 48 of the Merchant L.R. 6 Q.B. 31 ; and the British
Shipping Act, 1894, and §§ 50 Nationality and Status of Aliens
and 53 of the Merchant Shipping Act, 1914(4&5Geo. v. c. 17), §l(l)c.
Act, 1906. 4 See Jordan in R.I., 2nd Ser. x.
•See above, § 178, and below, (1908), pp. 341-362 and 481-500; and
§§ 447-451. R. V. LetUy, (1860) BeU 220.
JURISDICTION ON THE OPEN SEA 425
supremacy of the flag^ State. But although they
appear in this respeclrtis though they were, private
vessels are in fact not floating portions of the flag
State. For in time of war belligerent men-of-war
can visit, search, and capture neutral private vessels
on the open sea for breach of blockade, contraband,
and the hke, and in time of peace men-of-war of all
nations have certain powers ^ over merchantmen of
all nations.
§ 265. Until 1910 no rules of the Law of Nations existed safety of
for the purpose of preventing collisions, saving lives ^j,™Ope°n
after colhsions, and the hke ; but every State possessing Sea.
a maritime flag had enacted laws concerning signalling,
piloting, courses, colhsions, and the hke, which were
apphcable to vessels saihng under its flag on the open
sea. Although every State could then legislate on
these matters independently, there was a tendency
during the second half of the nineteenth century to
follow the lead given by Great Britain in the Merchant
Shipping Amendment Act of 1862, with its ' Regula-
tions for preventing Colhsions at Sea,' and the Merchant
Shipping Acts of 1873 and 1894. Moreover, the Com-
mercial Code of Signals for the Use of all Nations,
pubhshed by Great Britain in 1857, was adopted by
all maritime States, In 1889 a conference of eighteen
maritime States took place at Washington, which
recommended a body of rules for preventing coUisions
at sea to be adopted by each State,^ and a revision of
the Code of Signals. These regulations were revised in
1890 in England, and,* after some direct negotiations
between the Governments, most maritime States made
* Since, however, individuals ^ See below, § 266. The question
abroad remain under the personal of the territoriality of vessels is ably
supremacy of their home State, discussed by Hall, §§ 76-79.
nothing can prevent a State from ' See Martens, N.R.G., 2nd Ser.
legislating as regards such of its xvi. p. 416.
citizens as sail on the open sea on ' See Martens, N.R.G., 2nd Ser.
board a foreign vessel. xxii. p. 113.
426
THE OPEN SEA
corresponding regulations. A new and revised edition
of the International Code of Signals was published
by the British Board of Trade, in conformity with
arrangements with other maritime Powers, in 1900,
and was in general use ^ before the World War. Early
in 1920, a committee was appointed by the British
Government to prepare a new version.
But whereas before 1910 there were no rules of Inter-
national Law on these matters, in that year, at a con-
ference held at Brussels, to which all the maritime States
of Europe, the United States of America, and most of
the South American States sent representatives, two
' conventions were signed on September 23, one ' for
the unification of certain rules of law with respect to
colHsions between vessels,' and the other ' for the imi-
fication of certain rules of law respecting assistance and
salvage at sea.' ^ To carry out these two conventions
the Maritime Conventions Act^ was passed in 1911.
Moreover, as a result of the disaster to the liner Titanic,
an international conference met in London in 1913 to
draw up a convention for the safety of life at sea.
The convention was signed on January 20, 1914, was
to be ratified not later than the end of that year, and
to come into operation on July 1, 1915. But owing to
the World War no further steps were taken with regard
to it, and the coming into force of the Merchant Ship-
ping (Convention) Act, 1914,* which was passed in
Great Britain to give efiect to the convention, has, in
consequence, been postponed from time to time.^
^ This matter of oolUsion at sea,, ^ 1 & 2 Geo. v. o. 57. As to the
as it stood in 1899, is exhaustively second of these conventions, see
treated by Prien, Der Zutammenatoss below, § 271.
von Schifen nach den Oesetzen des a /i * k ri„„ „ Kn rru. „™
ErdbcUh {2nd ed. 1899). See also * * ^ ^^.°-7; °- ^°- ^^^?°t
Smith, The Law Relating to the Rule l^f'Z ^%P"°f "^C,^ f"^I T
-,:C<i« p™j „* «!.,„ iM\M\\ ^°^ Act. See also Wheeler in A.J.,
of the Road at Sea {l^W). ... /iQi4l tin 7';s 7fi«
» Misc., No. 5 (1911), Od. 6558; "^"^ *^''^*'' PP" 758-768.
Treaty Ser. (1913), No. 4 ; Martens, ' London Gazette, December 9,
N.R.G., 3rd Ser. vii. p. 711. 1919.
JTJRISDICTIOlf- ON THE OPEN SEA 427
But although certain rules of law which are to be
appHed in actions relating to colhsions at sea have
been settled by the first of the conventions just men-
tioned/ the question as to whait courts have jurisdic-
tion in such actions is not at all settled.^ That the
damaged innocent vessel can bring an action against the
guilty ship iji the courts of the latter's flag State is
beyond doubt, since jurisdiction on the open sea follows
the flag. If the rule that aU vessels while on the open
sea are considered under the sway of their flag State
were one without exception, no other State could claim
jurisdiction in cases of collision. But in fact mari-
time States ^ do claim jurisdiction over vessels flpng
other flags, though their practice is not uniform. Thus,
for instance, France * claims jurisdiction if the damaged
ship is French, although the guilty ship may be
foreign, and also if both ships are foreign in case both
consent, or for urgent measures having a provisional
character, or in case France is a place of payment.
Thus, further, Italy ^ claims jurisdiction, even if both
ships are foreign, in case an Italian port is the port
nearest to the colHsion, or in case the damaged ship
was forced by the collision to remain in an ItaUan port.
Great Britain goes farthest, for the Admiralty Court
claims jurisdiction provided the guilty ship is in a
British port at the time the action for damages is
brought, even if the coUision took place between two
* Both the Brussels Conventions of Laws (2nd ed.), pp. 650-652and 790 ;
1910 are in the Ust of multilateral Foote, Private International Juria-
treaties of an economic or technical prudence (3rd ed. ), pp. 486 and 495 ;
character which, according to Article Westlake, Private International Law
282 of the Treaty of Peace -with (4th ed.j, pp. 266-269; Marsden,
Germany, ' shall alone be applied as The Law of CoUiaiom at Sea (6th ed.
between Germany and those of the 1910) ; Williams and Bruce, Treatise
Allied and Associated Powers party on the Jwritdiction of JEngliih Oowrte
thereto.' See below, § 5816. in Admiralty Action! (3rd ed. 1902) ;
' See Phillimore, iv. § 815 ; Calvo, Halsbury, The Lomi of England:
i. § 444 ; Pradier-Fod6r6, v. Nob. Collisiona, vol. xxvi. p. 359.
2362-2374 ; Hai, Private Intematimal ' See above, § 146.
Law (2nd ed. translated by Gillespie), * See Pradier-Fod6r6, v. No. 2363.
pp. 720 and 928; Bioey, Conflict of ' See Pradier-Fod*r6, v. No. 2364.
430 THE OPEN SEA
nised rule that men-of-war of every State may seize,
and bring to a port of their own for punishment, any
foreign vessel sailing under the flag of such State with-
out authority.^ Accordingly, Great Britain has, by
section 69 of the Merchant Shipping Act, 1894, enacted :
' If a person uses the British flag and assumes the
British national character on board a ship owned in
whole or in part by any persons not qualified to own a
British ship, for the purpose of making the ship appear
a British ship, the ship shall be subject to forfeiture
under this Act, unless the assumption has been made
for the purpose of escaping capture by an enemy or by
a foreign ship of war in the exercise of some beUigerent
right.'
HowVeri- § 267. A man-of-war which meets a suspicious mer-
Mag^s °^ chantman not showing her colours and wishes to verify
effected, them, hoists her own flag, and fires a blank cartridge.
This' is a signal for the other vessel to hoist her flag in
reply. If she takes no notice of the signal, the man-of-
war fires a shot across her bows. If the suspicious vessel,
in spite of this warning, stiU declines to hoist her flag,
the suspicion becomes so grave that the man-of-war
may compel her to bring to for the purpose of visiting
her, and thereby verifying her nationahty.
How Visit § 268. The intention to visit may be communicated
18 effected. ^ ^ merchantman either by hailing, or by the ' in-
forming gun ' — ^that is, by firing either one or two blank
cartridges. If the vessel takes no notice of this com-
munication, a shot may be fired across her bows as a
signal to bring to, and, if this also has no effect, force
may be resorted to. After the vessel has been brought
to, either an officer is sent on board for the purpose of
inspecting her papers, or her master is ordered to bring
his ship papers for inspection on board the man-of-war.
' Except as a ruse, in time of war, to escape captvire by a belligerent
man-of-war.
JURISDICTION ON THE OPEN SEA 431
If the inspection proves the papers to be in order, a
memorandum of the visit is made in the log book, and
the vessel is allowed to proceed on her course.
§ 269. Search Ls naturally a measure which visit How
must always precede. It is because the visit has given %l^^^
no satisfaction that search is instituted. Search is
effected by an officer and some of the crew of the man-
of-war, the master and crew of the vessel to be searched
not being compelled to render any assistance whatever,
except to open locked cupboards and the Uke. The
search must take place in an orderly way, and no damage
must be done to the cargo. If the search proves every-
thiog to be in order, the searching party must carefully
replace everything removed, a memorandum of the
search is to be made in the log book, and the searched
vessel is to be allowed to proceed on her course.
§ 270. Arrest of a vessel takes place either after visit How
and search have shown her Uable thereto, or after she efeoted"
has committed some act which is sufficient in itself to
justify her seizure. Arrest is effected through the com-
mander of the arresting man-of-war appointing one of
her (Officers and a part of her crew to take charge of the
arrested vessel. This officer is responsible for the vessel,
and for her cargo, which must be kept safe and intact.
The arrested vessel, either accompanied by the arresting
vessel or not, must be brought to such harbour as is
determined by the cause of the arrest. Thus, neutral
or enemy ships seized in time of war are always ^ to be
brought into a harbour of the flag State of the captor.
And the same is the case in time of peace, when a vessel
is seized because her jflag cannot be verified, or because
she was saiHng under no flag at all. On the other hand,
when a fishing vessel or a bumboat is arrested in the
North Sea, she is always to be brought into a harbour
' Except in the case of distress or unseaworthiness ; see below, vol. ii.
i 193.
432
THE OPEN SEA
of her flag State and handed over to the authorities
there.i
Ship- § 271. Goods and persons shipwrecked on the open
Tnd Dis- ^®* ^° ^^^ thereby lose the protection of the flag State
tress on of the shipwrccked vessel. Even before 1910 no State
Sea. ^*° might recognise appropriation by its subjects of aban-
doned foreign vessels and other dereUcts on the open
sea. But every State could by its Municipal Law enact
■"tKat~ those of its subjects who took possession of aban-
doned vessels and of shipwrecked goods need not restore
them to their owners without salvage,^ whether the
act of taking possession occurred on the open sea or
within its territorial waters and on its shore.
The Brussels Convention of 1910 ' for the unification
of certain rules of law respecting assistance and salvage
at sea/ ^ recognises the right to salvage, and contains a
uniform set of rules to be appUed by municipal courts
exercising, jurisdiction in actions for salvage and claims
arising out of assistance rendered to vessels in distress.
Such modification in Enghsh law as was needed to give
efiect to its provisions was carried out by the Maritime
Conventions Act of 1911.^
As regards vessels in distress,^ the same Brussels Con-
vention contains, in Article 11, a provision that every
master is bound, so far as he can do so without serious
danger to his vessel, her passengers and crew, to render
assistance to every person, even though an enemy,
found at sea in danger of being lost. The owner of the
vessel, however, incurs no liability through disobedience
to this provision. Nor does it apply to ships of war,
nor to government ships exclusively appropriated to
the pubhc service.^ Most States, however, by their
'■ See below, §§ 282 and 283. Merchant Shipping Act, 1894.
" See Phillimore, iv. § 815 ; Dieey, ' See above, § 265.
Conflict of Laws (2nd ed. 1908), p. * Wireless signals of distress
791 ; and Halabury, The Laws of are discussed below in §§ 287a,
England: Wreck, vol. xxvi. p. 548. 2876.
See also §§ 545 and 565 of the ' See Article 14.
PIRACY 433
municipal regulations, order their men-of-war to render
assistance to any vessel found in distress at sea.
PIRACY
Hall, §§ 81-82— Westlake, i. pp. 181-186— Lawrenoe, § 102— Phillimore, i.
§§ 358-361— Twies, i. § 177 and ii. § 193— Halleok, i. pp. 476-483—
Taylor, §§ 188-189— Walker, § 21— Wheaton, §§ 122-124— Moore, ii.
§§ 311-315— Hershey, Nos. 213-215— Bluntsohli, §§ 343-350— Heffter,
§ 104— Gareis in HoUzendorff, ii. pp. 571-581— Gareis, § 68— Liszt, § 26
— Ullraann, § 104— Bonfils, Nos. 592-594— Despagnet, Nos. 431-433—
M6rignhao, ii. pp. 506-511— Pradier-Fod^r6, v. Nos. 2491-2515— Rivier,
i. pp. 248-251— Oalvo, i. §§ 485-512— Fiore, i. Nos. 494-495, and Oode,
Nos. 300-305— Perels, §§ 16-17— Testa, pp. 90-97— Ortolan, DiplomcUie
de la Mer (1856), i. pp, 231-253 — Stiel, Der Tatbeitamd der Pvraterie
(1905)— Sebertin.^./., xxvi. (1915), pp. 8-70.
§ 272. Piracy, in its original and strict meaning, is Conoep-
every unauthorised act of violence committed by ap\°ao°y.
private vessel on the open sea againjst another vessel
with intent to plunder {cmimo furandi). The majority
of writers confine piracy to such acts, which indeed are
the normal cases of piracy. But there are cases possible
which are not covered by this narrow definition, and
yet they are treated in practice as though they were
cases of piracy. Thus, if the members of the crew
revolt and convert the ship, and the goods thereon, to
their own use, they are considered to be pirates, although
they have not committed an act of violence against
another ship. Again, if unauthorised acts of violence,
such as murder of persons on board the attacked vessel,
or destruction of goods thereon, are committed on the
open sea without intent to plunder, such acts are in
practice considered to be piratical. Therefore several
writers,^ correctly, I think, oppose the usual definition
• Hall, § 81 ; Lawrenoe, § 102 ; Bluntsohli, § 343 j Liszt, § 26 ; Oalvo,
§485.
VOL. I. 2 E
434
THE OPEN SEA
of piracy as an act of violence committed by a private
vessel against another vritli intent to plimder. But
yet no unanimity exists among them concerning a fit
definition of piracy, and the matter is therefore very
controversial. If a definition is desired which really
covers all such acts as are in practice treated as piratical,
piracy must be defined as every unauthoriseA act of
violence against persons or goods committed on the open
sea either by a private vessd against another vessel or by
the muti)ious crew or passengers against their own vessel.^
Before a Law of Nations in the modem sense of the
term was in existence, a pirate was already considered
an outlaw, a ' hostis humani generis.' According to
the Law of Nations the act of piracy makes the pirate
lose the protection of his home State, and thereby his
national character ; and his vessel, although she may
formerly have possessed a claim to sail under a certain
State's flag, loses such claim. Piracj is a so-caUed
' international crime ' ; ^ the pirate is considered the
enemy of every State, and can be brought to justice
anywhere.
PriTate § 273. Private vessels only? can commit piracy. A
Sub^ecte man-of-war or otiier pubhcsEp^as long as she remains
of Piracy, guch, is ucver a pirate. If she commits unjustified acts
of ^dolence, redress must be asked from her flag State,
which has to punish the commander, and to pay damages
where required. But if a man-of-war or other pubhc
ship of a State revolts, and cruises the sea for her own
purposes, she ceases to be a public ship, and acts of
\"iolence then committed by her are indeed piratical
acts. A privateer is not a pirate as long as her acts of
violence are confined to enemy vessels, because such
acts are authorised by the belligerent in whose services
^ The conception of piracy is dis- ' See above, § 151.
cussed in The RepxMic of Bolivia v. * Piracy committed by the muti-
The Iixdemnity Mutual Marine Aa- nous crew will be treated below,
surance Co., [1909] 1 K.B. 785. § 274.
PIRACY 435
she is acting. And it matters not that the privateer is
origiaally a neutral vessel.^ But if a neutral vessel
were to take letters of marque from both belhgerents,
she would be considered a pirate.
Doubtful is the case where a privateer, in a civil war,
has received her letters of marque from the insurgents ;
and, further, the case where, during a civil war, men-of-
war joia the insurgents before they have been recognised
as a belligerent Power. It is evident that the legitimate
Government wiU treat such ships as pirates ; but third
Powers ought not to do so, as long as these vessels do
not commit any act of violence against ships of these
third Powers. Thus, in 1873, when an insurrection
broke out ia Spain, Spanish men-of-wa,r stationed at
Carthagena fell into the hands of the insurgents, and
the Spanish Government proclaimed these vessels
pirates, England, Prance, and Germany instructed the
commanders of their men-of-war in the Mediterranean
not to interfere as long as these insurgent vessels ^
abstained from acts of violence against the Uves and
property of their subjects.^ On the other hand, when
in 1877 a revolutionary outbreak occurred at Callao in
Peru and the ironclad Huascar, which had been seized
by the insurgents, put to sea, stopped British steamers,
' See details regarding this con- cannon, and a considerable quantity
troversial point in Hall, § 81. See of ammunition. She bore a com-
also below, vol. ii. §§ 83 and 330. mission from Colombian insurgents,
, o ^ , . „o .„» en, IT 1, and was designed to assist in the
8 SO w^^f^v' '•■ ^^ il'fiU ' Wookade of the port of Carthagena
§82; Westlake,!. pp. 183-186. ^^y ^j^^ ^^^^^^ Commander Clark
' But in the American case of The considered the vessel to be a pirate
Amhrote Light (25 Federal 408 ; see and sent her in for condemnation,
also Moore, ii. § 332, p. 1098) the The court held that in absence of
court did not agree with this. The any recognition of the Colombian
jlmftroseiytgrAJwasabrigantinewhioh, insurgents as a belligerent Power the
when on April 24, 1885, she was Amhroae Light had been lawfully
sighted by Commander Clark of the seized as a pirate. The vessel was,
U.S. S. .4Kiamce in the Caribbean Sea, however, nevertheless released be-
was flying a strange flag showing cause the American Secretary of
a red cross on a white ground, but State had recognised by implication
she afterwards hoisted the Colombian a state of war between the insur-
flag ; when seized she was found to gents and the legitimate Colombian
carry sixty armed soldiers, one Government.
436
THE OPEN SEA
took a supply of coal without payment from one of
these, and forcibly took two Peruvian of&cials from on
board another where they were passengers, she was
justly considered a pirate and was attacked by the
British Admiral de Horsey, who was in command of
the British squadron in the Pacific.^
It must be emphasised that the motive and the pur-
pose of such acts of violence do not alter their piratical
character, since the intent to plunder {anirmis furandi)
is not required. Thus, for instance, if a private neutral
vessel without letters of marque during war, out of
hatred of one of the belhgerents, were to attack and to
sink vessels of such belligerent without plimdering at
all, she would nevertheless be considered as a pirate.®
The case must also be mentioned of a privateer or
map-of-war which, after the conclusion of peace, or the
termination of war by subjugation and the hke, con-
tinues to commit hostile acts. If such vessel is not
cognisant of the fact that the war has come to an end,
she cannot be considered as a pirate. Thus the Con-
federate cruiser Shenandoah, which in 1865, for some
months after the end of the American Civil War, attacked
American vessels, was not considered a pirate^ by the
British Government when her commander gave her up
to the port authorities at Liverpool in November 1865,
because he asserted that he had not known till August
of the termination of the war, and that he had abstained
from hostihties as soon as he had obtained this informa-
tion.
§ 274. If the crew, or passengers, revolt on the open
sea, and convert the vessel and her goods to their own
use, they commit piracy, whether the vessel is private
' As regards the case of the ' This statement is oorreot in spite
Argentinian vessel Portefla and the of Article 46, No. 1, of the unratified
Spanish vessel Montezuma, after- Deolaration of London ; see below,
■wards called Gespedes, see Calvo, i. vol. ii. § 410 (1).
§§ 502 and 603. ' See Lawrence, § 102.
PIRACY 437
or public. But a simple act of violence on the part of Mutinous
crew or passengers does not constitute in itself the crime pls^n"
of piracy, not at least as far as International Law is IXeots
concerned. If, for instance, the crew were to murder of Piracy,
the master on account of his cruelty, and afterwards
carried on the voyage, they would be murderers, but
not pirates. They are pirates only when the revolt is
directed, not merely against the master, but also against
the vessel, for the purpose of converting her and her
goods to their own use.
§ 275. The object of piracy is any pubhc or private object of
vessel, or the persons or the goods thereon, whilst on ^'^^°^'
the open sea. In the regular case of piracy the pirate
wants to make booty ; it is the cargo of the attacked
vessel which is the centre of his interest, and he might
free the vessel and the crew after having appropriated
the cargo. But he remains a pirate, whether he does so
or whether he kills the crew and appropriates the ship,
or siaks her. On the other hand, the cargo need not
be the object of his act of violence. If he stops a vessel
and takes a rich passenger ofi with the intention of
keeping him for the purpose of a high ransom, his act
is piracy : it is likewise piracy if he stops a vessel merely
to kill a certain person only on board, although he may
afterwards free vessel, crew, and cargo.^'
§ 276. Piracy is effected by any unauthorised act of Piracy,
violence, be it direct appHcation of force or intimida- eff^ted.
tion through menace. The crew or passengers who,
for the purpose of converting a vessel and her goods to
their own use, force the master through intimidation
to steer another course, commit piracy as weU as those
who murder the master and steer the vessel themselves.
And a ship which forces another ship, by threatening to
^ That a possible object of piracy guilty of piracy belong, is an infer-
is not only another vessel, but also enoe from the statements above in
the very ship to which the persons § 274.
438
THE OPEN SEA
sink her if she should refuse, to deliver up her cargo or a
person on board, commits piracy just as much as the
ship which attacks another vessel, kills her crew, and
thereby gets hold of her cargo or a person on board.
The act of violence need not be consummated : a mere
attempt, such as attacking or even chasing a vessel for
the purpose of attack, by itself comprises piracy. On
the other hand, it is doubtful whether persons cruising
in armed vessels with the intention of committing piracies
are Uable to be treated as pirates before they have com-
mitted a single act of violence.^
Where § 277. Piracy as an ' international crime ' can be
Sn^be committed on the open sea only. Piracy in territorial
com- coast waters has as little to do with International Law
as other robberies within the territory of a State. Some
writers ^ maintain that piracy need not necessarily be
committed on the open sea, but that it suffices that the
respective acts of violence are committed by descent
from the open sea. They maintain, therefore, that
if ' a body of pirates land on an island imappropriated
by a civilised Power, and rob and murder a trader who
may be carrying on commerce there with the savage
inhabitants, they are guilty of a crime possessing aU
the marks of commonplace professional piracy.' With
this opinion I cannot agree. Piracy is, and always has
been, a crime against the safety of traffic on the open
sea, and therefore it cannot be committed anywhere
else than on the open sea.
jurisdio- § 278. A pirate and his vessel lose ipso facto by an
Pirateir ^^* °^ piracy the protection of their flag State and their
and their national character. Every maritime State has, by a
ment. customary rule of the Law of Nations, the right to
* See Stephen, Digest of the no attempt to commit a piratical act
Criminal Law, Article 104. In the had been made by her.
case of The Ambrose Light — see
above, § 273 — the court considered ' Hall, § 81 ; Lawrence, § 102 ;
the vessel to be a pirate, although Westlake, i. p. 181.
PIRACY 439
punish pirates. And the vessels of all nations, whether
men-of-war, other public vessels, or merchantmen,^ can
on the open sea ^ chase, attack, and seize the pirate,
and bring him home for trial and punishment by the
courts of their own country.^
This punishment may, by the Law of Nations, be
capital. But it need not be, the Municipal Law of the
different States being competent to order any less severe
punishment. Nor does the Law of Nations make it a
duty for every maritime State to punish all pirates.*
In former times it was said to be a customary rule of
International Law that pirates could at once after seizure
be hanged or drowned by the captor. But this cannot
now be upheld, although some writers assert that it is
still the law. It would seem that the captor may
execute pirates on the spot only when he is not able to
bring them safely into a port for trial ; but Municipal
Law may, of course, interdict such execution.
§ 279. The question as to the property in the seized Pirata
piratical vessels, and the goods thereon, has been the^^™"'"'
subject of much controversy. During the seventeenth "'"'"•
century, the practice of several States conceded such
vessel and goods to the captor as a premium. But
during the eighteenth century, the rule firata mm
mvtat dominium became more and more recognised.
Nowadays the conviction would seem to be general that
' A few writers (Gareis in ing the flags of suspicious merohant-
HoUzendorff, ii. p. 575 ; Liszt, § 26 ; men of all nations, has already been
Ullmann, § 104 ; Stiel, op. cit., p. 51) stated above (§ 266 (2)).
maintain, however, that men-of-war * Thus, according to the German
only have the power to seize the Criminal Code, piracy committed by
pirate. foreigners against foreign vessels
" If a pirate is chased on the open cannot be punished by German
sea and flees into the territorial courts (see Perels, § 17). From
maritime belt, the pursuers may Article 104 of Stephen's Digest of
follow, attack, and arrest the pirate the Criminal Law, there seems to be
there ; but they must give him up no doubt that, aooording to English
to the authorities of the littoral law, all pirates are liable to be
State. punished. See Stiel, op. ci«., p. 15,
' That men-of-war of all nations n. 4, who surveys the Municipal
have, with a view to ensuring the Law of many States concerning this
safety of traffic, the power of verify- point.
440
THE OPEN SEA
ship and goods must be restored to their owners and
may be conceded to the captor only when their real
ownership cannot be ascertained. In the first case,
however, a certain percentage of the value is very often
conceded to the captor as a premium and an equivalent
for his expenses (so-called droit de recousse).^ Thus,
according to English law,^ a salvage of 12J per cent,
is to be paid to the captor of the pirate.
Piracy § 280. Piracy, according to the Law of Nations, which
to^Mui^^ has been defined above (§ 272), must not be confounded
oipaiLaw. y^]^ ^he conception of piracy according to the different
Municipal Laws.^ The several States may confine them-
selves to punishing as piracy fewer acts of violence than
those which the Law of Nations defines as piracy. On
the other hand, they may punish their own subjects as
pirates for a much wider range of acts. Thus, for in-
stance, according to the Criminal Law of England,*
every British subject is, i-nter alia, deemed to be a pirate
who gives aid or comfort upon the sea to the King's
enemies during a war, or who transports slaves on the
high seas.
However, since a State cannot enforce its Municipal
Laws on the open sea against others than its own
subjects, it cannot treat foreigners on the open sea as
pirates, unless they are pirates according to the Law of
Nations. Thus, when in 1858, before the aboUtion of
slaveryin America, Britishmen-of-war molested American
vessels suspected of canying slaves, the United States
rightly complained.^
' See details regarding the ques- " See Gal vo, §§ 488-492 ; Lawrence,
tion as to the piratical vessels and g 103 ; Pradier-Fodir^, v. Nos. 2501
goods in Pradier-Fod^r^, v. Nos. and 2502.
2496-2499.
* See § 5 of the 'Act to repeal * See Stephen, Digest of the
an Act of the Sixth Year of King Criminal Law, Articles 104-117.
George the Fourth, for encouraging
the Capture or Destruction of ' See Wharton, iii. § 327, pp. 142
Piratical Ships, etc' (13 & 14 Vict. and 143; Taylor, § 190; Moore, ii.
0. 26). § 310, pp. 941-946.
PISHEEIES IN THE OPEN SEA
441
VI
FISHEEIES m THE OPEN SEA
Grotius, ii. o. 2, § 3— Vattel, i. § 282— Hall, § 27— Lawrence, §§ 86 and 91—
PhilHmore, i. §§ 189-195— Twiss, i. § 185— Taylor, §§ 249-250— Wharton,
, iii. §§ 300-308— Wheaton, §§ 167-171— Moore, i. §§ 169-173— Bluntsohli,
§ 307— Stoerk in HoUzmdofff, ii. pp. 504-507— Gareis, § 62— Liszt, § 35
— UUmann, § 103— Bonfils, Nos." 581-582, 595— Despagnet, Nos. 411-413
— M6rignhao, ii. p. 531 — Pradier-Fodir^, v. Nos. 2446-2458 — Rivier, i.
pp. 243-244— Nys, ii. pp. 205-209— Calvo, i. §§ 357-364— Kore, ii. Nos.
728-729, and Code, Nos. 1000-1004— Martens, i. § 98— Perels, § 20— Hall,
Foreign Powers and Jurisdiction (1894), § 107 — David, La PSche mcuri-
timeau Point de Vue international (1897) — Fulton, Tlie Sovereignty of the
Seal (1911), pp. 57-534.
§ 281. Whereas the fisheries in the territorial mari- Fisheries
in the
time>belt can be reserved by the Uttoral State for itsopenSea
own subjects, it is an inference from the freedom of the Nations^'
open sea that the fisheries thereon are open ^ to vessels
' Denmark, silently, by fishing
regulations of 1872, dropped her
claim to an exclusive right of
fisheries within twenty miles of the
coast of Iceland ; see Hall, § 40.
Russia promulgated, in 1911, a
statute forbidding the fisheries to
foreign vessels within twelve miles
of the shore of the White Sea, but
the Powers protested against this
encroachment upon the freedom of
the open sea.
A case of a particular kind would
seem to be the pearl fishery off
Ceylon, which extends to a distance
of twenty miles from the shore,
and for which regulations exist
which are enforced against foreign
as well as British subjects. The
claim on which these regulations
are based is one 'to the products
of certain submerged portions of
land which have been treated from
time immemorial by the successive
rulers of the island as subject of
property and jurisdiction. ' See Hall,
Foreign Powers and Jv/riadiction
(1894), p. 243, n. 1. See also West-
lake, i. p. 190, who says: 'The
case of the pearl fishery is peculiar,
the pearls being obtained from the
sea bottom by divers, so that it has
a physical connection with the
stable element of the locality which
is wanting to the puysuit of fish
swimming in the water. When
carried on under State protection, as
that off the British island of Ceylon,
or that in the Persian Gulf which is
protected by British ships in pursu-
ance of treaties with certain chiefs
of the Arabian mainland, it may be
regarded as an occupation of the bed
of the sea. In that character the
pearl fishery will be territorial even
though the shallowness of the water
may allow it to be practised beyond
the limit which the State in question
generally fixes for the littoral seas,
as in the case of Ceylon it is practised
beyond the three miles limitgenerally
recognised by Great Britain. ' ' Qui
doutera," says Vattel (i. § 287), " que
les pSoheries des perles de Bahrem
et de Ceylan ne puissent l^gitime-
ment tomber en propri6t6 ? " And
the territorial nature of the industry
will carry with it, as being necessary
for its protection, the territorial
character of the sea at the spot.'
This opinion of Westlake coincides
with that contended by Great Britain
during the Behring Sea Arbitra-
tion ; see PaH. Papers, United
442
THE OPEN SEA
of all nations. Since, however, vessels remain whilst
on the open sea under the jurisdiction of their flag
State, every State possessing a maritime flag can legis-
late for the exercise of fisheries by its own vessels on the
open sea ; and it can by an international agreement
renounce its fishing rights on certain parts of the open
sea, and can accordingly interdict its vessels from fish-
ing there. So if it is advisable to restrict and regulate
the fisheries on some parts of the open sea, the Powers
can do this through international treaties. Such treaties
have been concluded — ^first, with regard to the fisheries
in the North Sea and the suppression of the liquor trade
among the fishing vessels there ; secondly, with regard
to the seal fisheries in the North Pacific Ocean ; thirdly,
with regard to the fisheries around the Faroe Islands
and Iceland.
Fisheries § 282. For the purpose of regulating the fisheries in
North tlie North Sea, an international conference took place
^^*- at the Hague in 1881 and again in 1882, at which Great
Britain, Belgium, Denmark, France, Germany, Holland,
and Sweden-Norway were represented, and on May 6,
1882, the International Convention for the Regulation
of the Police of the Fisheries in the North Sea outside
the Territorial Waters^ was signed by the representatives
of aU these States, Sweden-Norway excepted, to which
the option of joim'ng later on was given. This treaty
contains the following stipulations : ^
(1) All the fishing vessels of the signatory Powers
States, No. 4 (1893), Behring Sea (1908), pp. 6-10, and Westlake, i.
ArbitrationArchivesof HisMajesty's p. 203.
Government, pp. 51 and 59. But it ' Martens, N.S.G., 2nd Ser. ix.
is submitted that the bed of the p. 556.
open sea is not a possible object of ' The matter is exhaiistively
oooupation. The explanation of the treated by Rykere, Le Bigime Ugal
pearl fisheries off Ceylon and in the de la PSche maritime dans la Mar
PersianGulf being exclusively British du Kord (1901). To carry out the
is to be found in the fact that the obligations undertaken by her in the
freedom of the open sea was not a North Sea Fisheries Convention,
rule of International Law when Great Britain enacted The North
these fisheries were taken possession Sea Fisheries Act, 1883 (46 & 47
of. See Oppenheim in Z.V., ii. Vict. c. 22).
FISHERIES IN THE OPEN SEA 443
must be registered, and the registers have to be ex-
changed (Article 5). Every vessel has to bear visibly
in white colour on black ground her number, name, and
harbour, and an oflS.cial voucher of her nationality
(Articles 6-13).
(2) To avoid conflicts between the different fishing
vessels, very minute rules are provided (Articles 14-25),
(3) Special cruisers of the signatory Powers supervise
their fishing vessels engaged in the fisheries (Article 26).
All these cruisers ^ are competent to verify all contraven-
tions (other than those expressly excepted) committed by
the fishing vessels of all the signatory Powers (Articles 27-
28) . For that purpose they have the right of visit, search,
and arrest, and may compromise trifling matters on
the spot (Articles 29 and 33). But an arrested fishing
vessel is to be brought into a harbour of her flag State,
and handed over to the authorities there (Article 30) ;
and all contraventions are to be tried by the courts of
the State to which the contravening vessels belong
(Article 36).
§ 283. Connected with the regulation of the fisheries Bumboats
is the aboKtion of the hquor trade among the fishing JiJo^h
vessels in the North Sea. Since serious quarrels and s^*-
difliculties were caused through bumboats and floating
grog-shops selling intoxicating Hquors to the fishermen,
an international conference took place at the Hague
in 1886, where the signatory Powers of the North Sea
Fisheries Convention were represented. On November
16, 1887, the International Convention concerning the
Abolition of the Liquor Traffic among the Fishermen in
the North Sea was signed by the representatives of these
Powers — namely, Great Britain, Belgium, Denmark,
' But it is provided by the Treaty rights of inspection and police over
of Peace with Germany, by which fishing boats belonging to the Allied
the High Contracting Parties agree Pow^ers, shall be exercised solely by
to apply this convention in so far ships belonging to those Powers
as concerns them as froii the coming (Articles 285 and 272).
into force of that treaty, that all
444
THE OPEN SEA
France, Germany, and Holland. This treaty ^ was,
however, not ratified until 1894, and France did not
ratify it at all. It contains the following stipula-
tions : 2
It is interdicted to sell spirituous drinks to persons
on' board fishing vessels, who are prohibited from
bujring them (Article 2). Bumboats, which wish to
sell provisions to fishermen, mu.st be licensed by their
flag State and must fly a white flag ^ with the letter S
in black in the middle (Article 3). The special cruisers
of the Powers which supervise the fisheries in the North
Sea * are likewise competent to supervise the treaty
stipulations concerning bumboats ; they have the
right to ask for the production of the proper hcence,
and, if need be, to arrest the vessel (Article 7). But
arrested vessels must always be brought into a harbour
of their flag State, by the courts of which all contraven-
tions are to be tried (Articles 5, 7, 8).
Seal § 284. In 1886 a conflict arose between Great Britain
in"th"*^ and the United States through the seizure and con-
p^fio fiscation of British-Columbian vessels which had hunted
Ocean, scals in the Behring Sea outside the American terri-
torial belt, infringing regulations made by the United
States concerning seal fishing in that sea. Great Britain
and the United States concluded an arbitration treaty ^
concerning this conflict in 1892, according to which the
arbitrators were not only to settle the dispute itself, but
also (Article 7) ' determine what concurrent regulations
outside the jurisdictional limits of the respective Govem-
' See Martens, N.H.G., 2ncl .Ser. Gerrn;^ny provides (as in tiio case
xiv. p. 540, a,nd xxii. p. 5li2. of the North Sen Fisheries Con-
'' The matter I is U\:a.\,vA Ijy vention) that ri^^hts of inspection
Guillaume in /(./., xxvi. (iS'J4), and police over fishing hoiitM be-
p. 488. longing to AlUc^il I'owers arc to be
" This flag was agrei;d upon in the exercised solely by ships belonging
protocol concerning the ratification to those Powers (Articles 285 and
of the convention. (See Martens, 272).
N.U.Q., 2nd Ser. xxii. p. 563.) ' See Martens, N.n.U., 2nd Ser.
• The Treaty of Peace with xviii. p. 587.
FISHERIES m THE OPEN SEA 445
ments are necessary ' in the interest of the preservation
of the seals. The Arbitration Tribunal, which gave its
award ^ at Paris in 1893, called upon both parties to
forbid their subjects to kill seals within a zone of sixty
miles around the PribilofE Islands ; to kill seals at all
between May 1 and July 31 each year ; to engage
in sealing with nets, firearms and explosives, or in
other than specially licensed saihng vessels. Both
parties in 1894 carried out this task ; ^ other maritime
Powers were asked by the United States to submit
voluntarily to the regulations made for the parties by
the arbitrators, but only Italy ^ agreed to this.
Experience showed that the provisions made by the
Arbitration Tribunal were insufficient to prevent the
extinction of seals. The United States therefore in-
vited Great Britain, Russia, and Japan to a Pelagic
Seal Conference at Washington in 1911, where there was
signed, on July 7, 1911, a convention* 'respecting
Measures for the Preservation and Protection of the
Fur Seals in the North Pacific Ocean.' By this con-
vention seal fishing in the open sea is entirely prohibited
in the North Pacific Ocean north of the thirtieth parallel
of north latitude — an area including the Behring and
Kamschatka Seas and the Seas of Okhotsk and Japan.
It is likewise prohibited to kill, capture, or pursue sea
otters beyond three miles from the shore of territory
belonging to the signatory Powers, which have to keep
special cruisers to enforce these prohibitions. Seahng
' See Martens, N.R.G., 2nd Ser. (North Paciflo) Aot, 1895 (58 & 59
xxi, p. 439. The award is diflousHed Vict. n. 21).
by Barolay in R.I., xxv. (189.3), ' See Martens, N.R.G., 2nd Ser.
p. 417, and Engelhardt in /{./., xxvi. x^ii. p. 624.
(1894), p. 386, and R.O., v. (1898), * S™ Martens, N.R.G., .3rd Ser.
P|i- 193 and 347. See also Tillier, v. p. 720, and Treaty Ser, (1912),
J0e« Pgcheries de Phoquei de la Mer No. 2. Great Britain and the United
de ficArwigi( 1906), and Baloh.i'ifeoZM- States had already, on February 7,
tion de I'Arbitrage mtemational 1911, concluded a treaty conoerning
(1908), pp. 70-91. the same matter; see Martens,
N.R.a., 8rd Sor. v. p. 717, and
' See the Behring Sea Award Aot, Treaty Ser. (1911), No. 25. See
1894 (67 Viot. o. 2), and Seal Fisheries also below, § 593 (2).
446 THE OPEN SEA
is not prohibited within the territorial waters of the
signatory Powers, but arrangements are made to hand
over a fixed proportion of the catch taken on certain
islands by subjects of the State exercising sovereignty
thereon to agents of other parties to the conven-
tion. The convention is to remain in force for fifteen
years from December 15, 1911, and thereafter until
terminated by twelve months' written notice. In Great
Britain Parhament passed the Seal Fisheries (North
Pacific) Act, 1912, to carry out its provisions.^
Fisheries § 285. For the purpose of regulating the fisheries
the'Faroe outside territorial waters around the Faroe Islands and
Ind'ite- Iceland, Great Britain and Denmark signed on June 24,
land. 1901, the Convention of London,^ whose stipulations
are for the most part hterally the same as those of the
North Sea Fisheries Convention, concluded at the
Hague in 1882.^ The additional article of this Con-
vention of London stipulates that any other State
whose subjects fish around the Faroe Islands and
Iceland may accede to it.
VII
TELEGKAPH CABLES IN THE OPEN SEA
Bonfils, No. 583— Despagnet, No. 401— Pradier-Fod6r6, v. No. 2548—
M^rignhao, ii. p. 532— Nys, ii. pp. 210-211— Riv-ier, i. pp. 244 and 386
— Kore, ii. No. 822, and Code, Nos. 1139-1142— Stoerk in HoUzendorff,
ii. pp. 507-508— Liszt, § 29— Ullmann, §§ 103 and 147— Lauterbach, Die
Beschddigung wnterseeischer Telegraphenkabel (1889) — Landois, ^«r i/eAre
vom volkerrechtlichen Schutz der svbmarinen Telegraphenkctbd (1894) —
Jouhannaud, Les C&ble» sous-marins (1904) — Renavilt in R.I., xii. (1880),
p. 251, XV. (1883), p. 17. See also the literature quoted below, vol. ii.,
at the oommenoement of § 214.
' 2 & 3 Geo. V. 0. 10. xxxiii. (1906), p. 268.
* See Martens, N.R.G., 2nd Ser. » See above, § 282.
TELEGRAPH CABLES IN THE OPEN SEA 447
§ 286. It is a consequence of the freedom of the open Telegraph
sea that no State can prevent anQther from laying the Open
telegraph and telephone cables in any part of the open ^^^^.p^"^"
sea, whereas no State need allow this within its terri-
torial maritime belt. As numerous submarine cables
have been laid, the question as to their protection arose.
Already in 1869 the United States proposed an inter-
national convention for this purpose, but the matter
dropped in consequence of the outbreak of the Franco-
German war. The Institute of International Law took
up the matter in 1879 ^ and recommended an inter-
national agreement. In 1882 France invited the Powers
to an international conference at Paris for the purpose
of regulating the protection of submarine cables. This
conference met in October 1882, again in October 1883,
and produced the International Convention for the
Protection of Submarine Telegraph Cables, which was
signed at Paris on March 14, 1884, ^ by Great Britain,
Argentina, Austria-Hungary, Belgium, Brazil, Colombia,
Costa Rica, Denmark, San Domingo, France, Germany,
Greece, Guatemala, Holland, Italy, Persia, Portugal,
Roumania, Russia, Salvador, Serbia, Spain, Sweden-
Norway, Turkey, the United States, and Uruguay.
Colombia and Persia did not ratify. Japan acceded later.
§ 287. Its principal provisions are as follows : interna-
(1) Intentional or culpably negUgent breaking or Protec- '
damaging of a cable in the open sea is to be punished *'°" °*
by all the signatory Powers,^ except in the case of such marine
damage having been caused in the effort of self-preserva- cabie™^
tion (Article 2).
(2) Ships within sight of buoys indicating cables
which are being laid, or which are damaged, must keep
at least a quarter of a nautical mile distant (Article 6).
^ See Annuaire, iii. pp. 351-394. ' See the Submarine Telegraph
« See Martens, N.R.G., 2nd Ser. Act, 1886 (48 & 49 Viot. o. 49).
xi. p. 281.
44.8
THE OPEN SEA
(3) For dealing with infractions of the interdictions
and injunctions of the treaty the courts of the flag
State of the infringing vessel are exclusively competent
(Article 8).
(4) Men-of-war of all signatory Powers have a right
to stop and verify the nationality of merchantmen of
all nations which are suspected of having infringed the
regulations of the treaty (Article 10).
(5) All stipulations are made for the time of peace
only, and in no wise restrict the action of belligerents
during time of war.^
VIII
WIRELESS TELEGRAPHY ON THE OPEN SEA
Bonflls, No. 531"— Despagnet, 433 qvMer—hitizt, § 29— UUraann, g 147—
Meili, Die drahtloie Telegraphie, eto. (1908) — Sohneeli, Drahtloee Tele-
graphie vmd VSlkerrechl (1908) — Landsberg, Die drahtloee Telegraphie
(1909) — Kausen, Die drahtloae Telegraphie im Vdlkerrecht (1910)—
Thurn, Die Funkentdegraphie im Becht (1913) — Devaux, La Tiligraphie
tom> fil (1914) — Loewengard, Die imierimtionale Badiotelegraphie im
imtemationalen Becht (1916) — Rolland in B.O., xiii. (1906), pp. 58-92
— Fauohille in Armaaire, xxi. (1906), pp. 76-87 — Meurer and Boidin
in B.G., xvi. (1909), pp. 7« and 261.
Unsatis- § 287a. To secure wireless communication ^ between
ReauiTs of ^^^ ships of all uatious at sea, and between them
the Wire- and the land, a largely attended conference met at
graphy Berlin in 1906, and produced two conventions,
en"iof namely, an International Radiotelegraphic Conven-
Beriin. tiou ^ and an Additional Convention.* The former,
' See below, vol. ii. § 214, and regulated at the peace.'
Articl.^ 54 of the Ha^iie rules oon- « Sce above, § 174, and below,
oerning land warfare, which oriantH : gg 404 ofif] 5^2 (4).
'Submarine cables oonnooting a , „ .,1 ir t, ^ „ ■ n
territory oooupiod with ,. neutral ... *^ee Martens, N.B.Q., 3rd Ser.
territory shall not l)u seized or de- '"• P- 1*' i ' ''^l-y f^'^'"' ('fiOD),
stroyed except in the ease of absolute ^°- °-
necessity. They also must be re- ' See Martens, N.R.O., 3rd Ser.
stored and indemnities for them iii. p. 1S8.
WIRELESS TELEGRAPHY ON THE OPEN SEA 449
which secured radiotelegraphic, or wireless, com-
munication between coast stations and ships at sea,
was signed by all the States represented at the con-
ference. But it did not secure similar communication
between one ship at sea and another ; and the Addi-
tional Convention, which did provide for the interchange
of communications by all ships at sea possessing wire-
less installations without regard to the particular system
employed, did not obtain the signature of Great Britain
and five other Powers. This was a matter of great
regret on account of the importance of wireless communi-
cation in cases of distress.
For instance, it was possible for the following case,^
to which the delegate of the United States drew the
attention of the Berhn Conference, to occur again when
a ship belonging to a State which had not signed the
Additional Convention was involved. The American
steamer Lebanon had received orders to search the
Atlantic for a wrecked vessel which offered great danger
to navigation. The Lebancm came within communicat-
ing reach of the liner Vaderkmd, and inquired by wire-
less telegraphy whether the Vaderlaind had seen the
wreck. The Vaderland refused to reply to this question,
on the ground that she was not permitted to enter into
communication with a ship provided with a wireless
apparatus other than the Marconi.
§ 2876. Better results were, however, obtained by Results of
the International Conference on Wireless Telegraphy j^a^a ^i^'
which met in London in 1912, and was attended bys^'^P^y
e 1 ■ -n ^ Confer-
representatives of thirty Powers : Great Britain, Grer- enoe of
many, the United States of America, Argentina, Austria-
Hungary, Belgium, Brazil, Bulgaria, Chili, Denmarkj
Egypt, Spain, France, Tunis, Greece, Italy, Japan,
Morocco, Monaco, Norway, Holland, Persia, Portugal,
Roumania, Russia, San Marino, Siam, Sweden, Turkey,
' See Hazeltine, The Law of the Air (1911), p. 101.
VOL. I. 2f
450 THE OPEN SEA
and Uruguay. All these Powers signed, on July 5,
1912, the International Radiotelegraphic Convention ^
which took the place of the two Berlin conventions of
1906. The most important of its stipulations are the
following :
After distinguishing between a coast station, i.e. any
radiotelegraphic station established on dry land, or on
board any ship permanently anchored, and utilised for
the exchange of correspondence of ships at sea, and a
shi'p station, i.e. any radiotelegraphic station established
on board a ship other than a permanently anchored
ship, the convention provides that such coast stations
and ship stations as are open for the service of pubUc
correspondence between the land and ships at sea, and
likewise ship stations among themselves, must exchange
radiotelegrams reciprocally without distinction based
upon the radiotelegraphic system adopted. Each con-
tracting party undertakes to ensure a rapid exchange
of messages between the coast stations and its tele-
graph system. All radiotelegraph stations are bound
to accept and answer calls of distress from what-
ever quarter, to give them absolute priority, and to
take such action with regard to them as may be
necessary. The service regulations accompanying
the convention are of equal vaUdity; and both
they, and the convention, are subject to modifica-
tion at periodical conferences, each conference filing
the time and place of the succeeding conference.*
The International Telegraph Office at Berne ^ is
to collect, co-ordinate, and publish information of
every kind relating to radiotelegraphy, to investigate
suggested amendments to the convention or the
service regulations, and, in general, to undertake
> Treaty Ser. (1913), No. 10. the World War it did not take
' 1917 was fixed as the time, place,
and Washington as the place, for
the next conference ; bat owing to ' See below, §§ 464 wid 582.
THE SUBSOIL BENEATH THE SEA BED 451
administrative work in the interests of international
radiotelegraphy.^
On the initiative of the British Government, the
conference adopted unanimously a resolution in favour
of the principle of compulsory equipment of certain
classes of ships with wireless telegraph installations,
with a view to preventing disasters at sea and render-
ing assistance in cases of distress.
IX
THE SUBSOIL BENEATH THE SEA BED
§ 287c. The subsoil beneath the bed of the open sea Kve
requires special consideration, on account of coal or^noem-
other mines, tunnels, and the hke. For the answer to j?^*^.!
the question whether mines and tunnels can be driven beneath
into that subsoil at all, and, if so, whether they can be bSi^^^
under the territorial supremacy of a particular State,
depends entirely upon the character in law of such sub-
soil. If the subsoil beneath the bed of the open sea
stood in the same relation to the open sea as the
subsoil beneath the territory of a State stands to that
territory ,2 aU rules concerning the open sea would
necessarily have to be appKed to the subsoil beneath its
bed, and no part of this subsoil could ever come under
the territorial supremacy of any State. It is, however,
submitted ^ that it would not be rational to consider
the subsoil beneath the bed of the open sea as an in-
separable appurtenance of the open sea, just as the sub-
* By the Treaty of Peace with within five years of the coming into
Germany (Article 284), the High force of the Treaty of Peace, the new
Contracting Parties are to apply this convention is to be binding upon
convention, in so far as concerns Germany. The Treaty of Peace
them, on condition that Germany with Austria contains corresponding
fulfils the provisional regulations stipulations (Article 236).
indicated to her by the Allied and * See above, §§ 173, 175.
Associated Powers. If this oonven- ' SeeOppenheimin^. F., ii. (1908),
tion is replaced by a new convention p. 11.
452 THE OPEN SEA
soil beneath the territorial land and water is an appurte-
nance of such territory. The rationale of the open
sea being free and for ever excluded from occupation on
the part of any State is that it is an international high-
way, which connects distant lands, and thereby secures
freedom of communication, and especially of commerce,
between States separated by the sea.^ There is no
reason whatever for extending this freedom of the open
sea to the subsoil beneath its bed. On the contrary, there
are practical reasons — taking into consideration the
building of mines, tunnels, and the like — which compel
recognition of the fact that this subsoil can be acquired
through occupation. The following five rules recom-
mend themselves :
(1) The subsoil beneath the bed of the open sea is
no man's land, and it can be acquired on the part of
a httoral State through occupation, starting from the
subsoil beneath the bed of the territorial maritime
belt.
(2) This occupation takes place if so facto by a tunnel
or a mine being driven from the shore through the
subsoil of the maritime belt into the subsoil of the
open sea.
(3) This occupation of the subsoil of the open sea can
be extended up to the boundary Mne of the subsoil of
the territorial maritime belt of another State, for no
State has an exclusive claim to occupy such part of
the subsoil of the open sea as is adjacent to the subsoil
of its territorial maritime belt.
(4) An occupation of the subsoil beneath the bed of
the open sea for a purpose which woidd endanger the
freedom of the open sea is inadmissible.
(5) It is hkewise inadmissible to make such arrange-
ments in a part of the subsoil beneath the open sea
which has previously been occupied for a legitimate
' See above, § 259.
THE SUBSOIL BENEATH THE SEA BED 453
purpose as would indirectly endanger the freedom of
the open sea.
If these five rules are correct, there is nothing to
prevent coal and other mines which are being exploited
on the shore of a httoral State from being extended
into the subsoil beneath the open sea up to the boim-
dary Kne of the subsoil beneath the territorial maritime
belt of another State. Further, a tunnel which might
be built between two parts of the same State separated
by the open sea — ^for instance, between Ireland and
Scotland — would fall entirely xmder the territorial
supremacy of the State concerned. On the other hand,
for a tunnel between two different States separated by
the open sea — as, for instance, the proposed Gibraltar
tunnel between the Spanish coast and either Tangier or
Ceuta — special arrangements would have to be made by
treaty concerning the territorial supremacy over that
part of the tunnel which runs under the bed of the
open sea.
§ 287(Z. Since there is as yet no submarine tunnel in The
existence, it is of interest to give some details concern- cSi^ef
ing the project of a Channel Tunnel ^ between Dover Tunnel,
and Calais, and the preliminary arrangements between
France and England concerning it. Already some years
before the Franco-German War the possibiUty of such
a tunnel was discussed, but it was not until 1874 that
the first prehnodnary steps were taken. The subsoil
of the Channel was geologically explored, plans were
worked out, and a shaft of more than a mile long was
tentatively bored from the English shore. In 1876
an international commission, appointed by the English
and French Governments, and comprising three French
and three Enghsh members, made a report on the con-
' SeeOppenheiminZ. V.,n. (1908), Le Tunnel sout la Manche et le Droit
pp. 1-16 ; Robin in B.O., xv. (1908), intematimial (1915).
pp. 60-77 ; Liszt, § 26 ; and Colombos,
454 THE OPEN SEA
Btruction and working of the proposed tunnel.^ The
report enclosed a memorandum, recommended by the
commissioners as a basis for a treaty between Great
Britain and Prance concerning the tunnel.
This memorandum suggested (Article 1) that the
boundary between England and France in the tunnel
(and for the purposes of the tunnel and submarine rail-
way alone) should be half-way between low-water mark
(above the tunnel) on the coast of England and low-
water mark (above the tunnel) on the coast of France.
It recommended that (Article 4) an international
commission consisting of six members, three of whom
should be nominated by the British Government and
three by the French Government, should submit to
the two Governments its] proposals for supplementary
conventions with respect to (a) the apprehension and
trial of alleged criminals for ofEences conmiitted in the
tunnel or in trains which have passed through it, and
the summoning of witnesses ; (&) customs, poUce, and
postal arrangements, and other matters which it might
be found convenient so to deal with. It further advised
(Article 15) that each Government should have the
right to suspend the working of the submarine railway
and the passage through the tvmnel whenever such
Government, in the interest of its own country, thought
necessary to do so, and even to damage or destroy ^ the
works of the tunnel or submarine railway, or any part
of them, in the territory of such Government, and flood
the tunnel with water.
In spite of this elaborate preparation the project
could not be reahsed, since pubhc opinion in England
was for political reasons opposed to it. And although
^ See Pari. Papers, 0. 1576, the interest of defence in time of
Report of the CommiBsioners for war. As regards the position of a
the Channel Tunnel and Railway, Channel Tunnel in time of war, see
1876. Oppenheim in Z.V., ii. (1908), pp.
' This stipulation was proposed in 13-16.
THE SUBSOIL BENEATH THE SEA BED 455
in 1880, 1884, 1888, 1908, and 1911 ^ steps were again
taken in favour of the proposed tunnel, pubKc opinion
in England remained hostile until the World War, and
the project had for the time to be abandoned. Since
the armistice with Germany, concluded on November
11, 1918, a new movement has arisen for the construc-
tion of a Channel Tunnel, and the supporters of the
plan reinforce their arguments from the experiences of
the World War. The question is now under the con-
sideration of the British Government.
' See Fell, The Position of the Chomnel Tunnel Question in May 1914
(1914).
CHAPTER III
INDIVIDUALS
I
POSITION OF INDIVIDUALS IN INTERNATIONAL LAW
Lawrence, § 42— Taylor, § 171— Hershey, No. 222— Heffter, § 58— Stoerk in
ffoUzendorff, ii. pp. 585-592— Gareis, § 53— Liszt, §§ 5 and 11— UUmann,
§ 107— Bonfils, Nos. 397-409— Despagnet, No. 328— M6rignliao, ii. pp.
169-172 — Pradier-Fod6r6, i. Nob. 43-49 — Fiore, i. Nos. 684-712 —
Martens, i. §§ 85-86 — Jellinek, System, der avbjectiven offenllichen Sechte
(1892), pp. 310-314— Heilborn, System, pp. 58-138— Kaufmann, Die
Rechtthraft dea intematicmalen Bechtes (1899) — Buonvino, Diritto e
PersoncUitd, giuridica intemazionale (1910) — Borohard, §§ 7-10 — Rehm
and Adler in Z.V., i. (1907), pp. 53-55 and 614-618— Kohler in Z.V.,
ii. (1908), pp. 209-230— Diena in B.G., xvi. (1909), pp. 57-76.
Import- § 288. Individuals are just as important to the Law
indi- of Nations as territory, for individuals are the personal
thtilwof ^^^^^ of every State. Just as a State cannot exist
Nations, without a territory, so it cannot exist without a multi-
tude of individuals who are its subjects and who, as a
body, form the people or the nation. The individuals
belonging to a State can, and do, come in various ways
in contact with foreign States in time of peace as well
as of war. The Law of Nations is therefore compelled to
provide certain rules regarding individuals.
Indi- § 289. Now, what is the position of individuals in
never ^ International Law according to these rules ? Since,
rftht"*^ apart from the League of Nations, the Law of Nations
Law of is a law between States only and exclusively. States only
* '°°^' and exclusively ^ are subjects of the Law of Nations.
» See above, §§ 13 and 63.
THEIR POSITION IN INTERNATIONAL LAW 457
How is it then, that, although individuals are not
subjects of the Law of Nations, they have certain
rights and duties in conformity with, or according
to. International Law ? Have not monarchs and
other heads of States, diplomatic envoys, and even
simple citizens certain rights according to the Law of
Nations whilst on foreign territory ? If we look more
closely into these rights, it becomes quite obvious that
they are not given to the favoured individual by the
Law of Nations directly. For how could International
Law, which is a law between States, give rights to indi-
viduals concerning their relations to a State ? What
the Law of Nations really does concerning individuals
is to impose the duty upon all the members of the
Family of Nations to grant certain privileges to such
foreign heads of States and diplomatic envoys, and cer-
tain rights to such foreign citizens, as are on their terri-
tory. And, corresponding to this duty, every State
has by the Law of Nations a right to demand that its
head, its diplomatic envoys, and its citizens be granted
certain rights by foreign States when on their territory.
Foreign States granting these rights to foreign indi-
viduals do this by their Municipal Laws, and these
rights are, therefore, not international rights, but rights
derived from Municipal Laws. International Law is
indeed the background of these rights, in so far as the
duty to grant them is imposed upon the several States
by International Law. It is therefore quite correct
to say that the individuals have these rights in con-
formity with, or according to. International Law,
if only it is remembered that these rights would not
exist had the several States not created them by their
Municipal Law.
And the same is vaHd as regards special rights of
individuals in foreign countries according to special
international treaties between two or more Powers.
458
INDIVIDUALS
Although such treaties generally speak of rights which
individuals shall have as derived from the treaties them-
selves, this is nothing more than an inaccuracy of lan-
guage. In fact, such treaties do not create these rights,
but they impose the duty upon the contracting States of
caDing these rights into existence by their Municipal
Laws.i
Again, where States stipulate by international treaties
certain favours for individuals other than their own
subjects, these individuals do not acquire any inter-
national rights under these treaties, but the State whose
subjects they are has an obligation towards the other
States of granting such favours by its Municipal Law.
Thus, for example, when Articles 5, 27, 35, and 44
of the Treaty of Berlin, 1878, made it a condition of
the recognition of Bulgaria, Montenegro, Serbia, and
Roumania, that these States should not impose any
rehgious disability upon their subjects, the latter did
not thereby acquire any international rights.^ Another
instructive example^ is furnished by Article 5 of the
Peace Treaty of Prague, 1866, between Prussia and
Austria, which stipulated that the northern district of
Schleswig should be ceded by Prussia to Denmark in
case the inhabitants should by a plebiscite vote in favour
of such cession. Austria, no doubt, intended to secure
by this stipulation for the inhabitants of North Schleswig
the opportunity of voting in favour of their union with
Denmark. But these inhabitants did not thereby
acquire any international right ; Austria alone acquired
a right to insist upon Prussia gradating to the inhabitants
'■ The whole matter is treated with and in various treaties between the
great lucidity by Jellinek, System Principal Allied and Associated
der aubjectiven offenMicken Rechte Powers and other Powers which form
(1892), pp. 310-314, and Heilborn, part of the resettlement after the
aytUm, pp. 58-138. World War (see below, § 568A), do
^ Nor again, under the series of the individuals in whose favour these
clauses for the protection of racial, provisions have been made acquire
religious, or linguistic minorities in- any international rights,
serted in some of the treaties of peace ' See Heilborn, System, p. 67.
THEIR POSITION IN INTERNATIONAL LAW 459
the opportunity of voting for the union with Denmark.
Prussia, however, intentionally neglected her duty,
Austria did not insist upon her right, and finally rehn-
quished it by the Treaty of Vienna of 1878.^ So the
matter stood until the Treaty of Peace with Germany
(Articles 109-114) again stipulated for a plebiscite within
a certain area of Northern Schleswig.
The assertion ^ that, although individuals cannot
be subjects of International Law, they can neverthe-
less acquire rights and duties from International Law,
is untenable as a general proposition. International Law
cannot grant international rights to individuals, for
international rights and duties can only exist between
States, or between the League of Nations and States.
International Law cannot give municipal rights to indi-
viduals, for municipal rights and duties can only be
created by Municipal Law. However, where Inter-
national Law creates an independent organisation — for
instance, the proposed International Prize Court at the
Hague, or the European Danube Conxmission, and the
hke — certain powers may be granted to commissions,
courts, councils, and even to indiAdduals concerned.
These powers are legal powers, and are therefore justly
called rights, although they are neither international
nor municipal rights, but only rights within the organisa-
tion concerned. Thus the unratified Convention xii.
of the second Hague Peace ' Conference provided for
an International Pr5;e Court to which — see Articles
4 and 5 — ^individuals could bring an appeal.^ Thereby
^ It ought to be mentioned that pp. 57-76 ; Rehm and Adler in Z. V. ,
the opinion presented in the text i. (1907), pp. 53 and 614; Liszt, §5;
concerning the impossibility for Kohler in ^. F.,ii. (1908), pp. 209-
individuals to be eubjeots of Inter- 230.
national Law, which is now mostly ' The position of individuals in
upheld, is vigorously opposed by this case is discussed by Wehberg,
Ka-aimajm, Die Bechtthraft des inter- Das SeekriegKrecht (1915), pp. 362-
nationcUen Bechtet (1899), §§ 1-4, and 364. See also Lammasch, Die Lekre
a few others. von der Schiedagerichtbarkeit (1913),
' See Diena in B.G., xvi. (1909), pp. 158-161, %nd Borohard, § 9.
460
INDIVroUALS
a right would be given to individuals ; but it would be
neither an international nor a municipal right, but only
a right within the independent organisation ^ intended
to be set up by Convention xii.
indi- § 290. But what is the real position of individuals
Objects iJi International Law, if they are not subjects thereof ?
li^of ^^® answer can only be that they are objects of the Law
Nations, of Nations. They appear as such from many different
points of view. When, for instance, the Law of
Nations is seen to recognise the personal supremacy of
every State over its subjects at home and abroad, these
individuals appear as objects of the Law of Nations just
as does State territory in consequence of the recognised
territorial supremacy of every State. When, secondly,
the recognised territorial supremacy of every State is
seen to comprise certain powers over foreign subjects
within its boundaries with the exercise of which their
home State has no right to interfere, these individuals
appear again as objects of the Law of Nations. And,
thirdly, when it is seen that, according to the Law of
Nations, any State may seize and punish foreign pirates
on the open sea, or that belligerents may seize and
punish neutral blockade-runners and carriers of contra-
band on the open sea without their home State having
a right to interfere, individuals appear once more as
objects of the Law of Nations.^
§ 29L If, as stated, individuals are never subjects
but always objects of the Law of Nations, then nation-
ahty is the link between them and the Law of Nations.
It is through the medium of their nationality only that
' The organisation created by the * Westlake, Papers, p. 2, main-
Covenant of the League of Nations is tains that in these cases individuals
another example. The rights and appear as subjects of International
duties of the Council, the Assembly, Law ; but I cannot understand
and the Secretariat are neither inter- upon what argument this asser-
national nor municipal rights and tion is based. The correct stand-
duties, but only rights and duties point is taken up by Lorimer, ii.
within the organisation set up by p. 131, and Holland, Jurisprvdence,
the Covenant. p. 341.
THEIR POSITION IN INTERNATIONAL LAW 461
individuals can enjoy benefits from the existence of Nation-
the Law of Nations. This is a fact which has conse-^ink* ^
quences over the whole area of International Law.^^^^^«°
Such individuals as do not possess any nationahty enjoy viduais
no protection whatever, and, if they are aggrieved by Law of^
a State, they have no way of redress, since there is no Nations.
State which would be competent to take their case in
hand. As far as the Law of Nations is concerned,
apart from morality, there is no restriction whatever to
cause a State to abstain from maltreating to any extent
such stateless individuals.^ On the other hand, if
individuals who possess nationahty are wronged abroad,
it is their home State only and exclusively which has
a right to ask for redress, and these individuals them-
selves have no such right. It is for this reason that
the question of nationahty is very important for the
Law of Nations, and that individuals enjoy benefits from
this law, not as human beings, but as subjects of States
which are members of the Family of Nations. Their posi-
tion in this respect is so difierent from that of stateless
individuals and of subjects of States outside the Family
of Nations, that it has been correctly characterised as a
kiad of international ' indigenousness,' a VolkerrecMs-
Indigenat.^ Just as municipal citizenship procures for an
individual the enjoyment of the benefits of the Municipal
Laws, so this international ' indigenousness,' which is a
necessary inference from municipal citizenship, procures
the enjoyment of the benefits of the Law of Nations.
§ 292. Several writers * maintain that the Law of The Law
Nations guarantees to every individual at home and and the °^
abroad the so-caUed rights of mankind, whether he be 5?^¥? °i
1111 1 ■ r 1 Mankind.
stateless or not, and whether he be a subject of a member-
State of the Family of Nations or not. Such rights are
' See below, § 294. * Bluntaohli, §§ 360-363 and 370 ;
• See below, § 312. Martens, i. §§ 85 and 86 ; Fiore, i.
' See Stoerk in HoUzendcn-ff, ii. Nos. 684-712, and Code, Nos. 619-
p. 588. 674 ; Bonfils, No. 397, and others.
462
INDIVIDUALS
said to comprise the right of existence, the right to pro-
tection of honour, life, health, liberty, and property, the
right of practising the rehgion of his choice, the right of
emigration, and the like. But such rights — ^they could
only be municipal and not international rights — do not
in fact at present enjoy any guarantee whatever from
the Law of Nations.^ But there are certain facts which
cannot be denied at the background of this erroneous
opinion. The Law of Nations is a product of Christian
civiUsation and represents a legal order which binds
States, chiefly Christian, into a community. It is there-
fore no wonder that ethical ideas, some of which are the
basis of, and others a development from Christian
morals, have a tendency to require the help of Inter-
national Law for their realisation. When the Powers
stipulated at the Berhn Congress of 1878 that the Balkan
States should be recognised only under the condition
that they did not impose any rehgious disabihties on
their subjects, or when in several treaties which con-
stitute the resettlement after the World War the Prin-
cipal AlUed and Associated Powers secured the inser-
tion of clauses to protect minorities, they lent their arm
to the reahsation of such an idea. Again, when the
Powers after the beginning of the nineteenth century
agreed to several international arrangements in the
interest of the aboUtion of the slave trade,^ they fostered
• The matter is treated with great Act of the Congo Conference of
lucidity by Heilbom, System, pp. Berlin, 1885, which in Article 9
83-138. dealt with the slave trade ; (3) the
^ It is incorrect to maintain that General Act of the anti-slavery Con-
the Law of Nations has abolished ference of Brussels, 1890, which was
slavery, but there is no doubt that signed by Great Britain, Austria-
the conventional Law of Nations has Hungary, Belgium, the Congo Free
tried to abolish the slave trade. State, Denmark, France (see, how-
Three important general treaties ever, below, § S17), Germany,
were concluded for that purpose Holland, Italy, Persia, Portugal,
during the nineteenth century, after Russia, Spain, Sweden, Norway, the
the Vienna Congress — namely (1) United States, Turkey, and Zanzibar,
the Treaty of London, 1841, between See Queneuil, De la Traite des Noiri
Great Britain, Austria, France, etde I' Esclavage {1907), andKerahey,
Prussia, and Rusdia ; (2) the General No. 216.
NATIONALITY 463
the realisation of another of these ideas. And the
innumerable treaties between the different States as
regards extradition of criminals, commerce, naviga-
tion, cop5Tright, and the like, are inspired by the idea
of affording ample protection to life, health, and pro-
perty of individuals. Lastly, there is no doubt that,
should a State venture to treat its own subjects or some
of them with such cruelty as would stagger humanity,
public opinion of the rest of the world would call upon
the Powers to exercise intervention^ for the purpose
of compelling such State to estabhsh a legal order of
things within its boundaries sufficient to guarantee to
its citizens an existence more adequate to the ideas of
modern civihsation. However, a guarantee of the
so-called rights of mankind cannot be found in all
these and other facts.
II
NATIONALITY
Vattel, i. §§ 220-226— Hall, §§ 66 and 87— Westlake, 1. pp. 220, 238-240—
Halleok, i. p. 401— Taylor, §§ 172-178— Hershey, No. 223— Moore, iii.
§§ 372-376— Bluntsohli, §§ 364-380— Stoerk in ffoltzendorff, u. pp. 630-
650— Gareis, § 54— Liszt, § 11— UUmann, §§ 108 and 109— Bonfils, Nos.
433-454 — Despagnet, Nos. 329-333 — Pradier-Pod6r6, iii. No. 1645 —
Rivier, i. p. 303— Nys, ii. pp. 256-262— Calvo, ii. §§ 539-54Q— Fiore, i.
Nos. 644-658, 684-712, and Code, Nos. 643-646— Martens, i. §§ 85-87—
Hall, Foreign Powers amd Jwrisdiction (1894), § 14 — Cogordan, La
Nationaliti au Point de Vtie des Sapporta intemationaux (2nd ed, 1890) —
ZeballoB, La NatimudiU au Paint de Vue de la Legislation compa/rie, etc. ,
2 vols. (1914)— Borohard, §§ 4 and 5, and 198-227— Gargas in Z. V., v.
(1911), pp. 278-316 and 478-509.
§ 293. Nationahty of an individual ^ is his quahty of Conoep-
being a subject of a certain State, and therefore its citizen. Nation-
It is not for International, but for Municipal Law to *''*y-
determine who is, and who is not, to be considered a
subject. And therefore it matters not, as far as the
^ See above, § 137. is entirely a matter of private Inter-
' The nationality of corporations national Law, and considerations of
464 INDIVIDUALS
Law of Nations is concerned,* that Municipal Laws
may distinguish between different kinds of subjects
— ^for instance, those who enjoy full political rights,
and are on that account named citizens, and those who
are less favoured, and are on that account not named
citizens. Nor does it matter that, according to Munici-
pal Law, a person may be a subject of a part of a State,
for instance of a donunion or a colony, but not a subject
of the mother country, provided only such person
appears as a subject of the mother country as feir as
the international relations of the latter are concerned.
Thus, a person naturalised iu a British dominion or
colony is, for all international purposes, a British subject,
although he may not have the rights of a British subject
within the United Kingdom itself. 2 For all international
purposes, all distinctions made by Municipal Laws be-
tween subjects and citizens, and between different kinds
of subjects, have neither theoretical nor practical value,
and the terms 'subject' and 'citizen' are, therefore,
synonymous so far as International Law is concerned.
public policy have a decisive inflnenee Achard, La NcUionalite deg SociSds
upon the attitude of every State with anontfmes (1918).
regard to it. See Isay, Die StaaU- * Unless the State concerned has
angehorigheildirjtirigtiichenPersonen restricted its liberty of action witii
(1907) ; Yonng, Foreign Companies regard to these qnestaons by treaty
and other Gorporations (1912) ; \rith another State. See, for es-
Borchaid, §§ 23 and 227-282 (ex- ample. Treaty of Peace with Poland,
haustive literature on the problem is Articles 3-6 ; Treaty of Peace with
to be found in Borchard's appendix). Austria, Articles 64-65. Similar
During the World War the problem provisions occur in other treaties
became of particular importance, as of peace. See below, § 568A.
is apparent from the following * Sex v. Frajicig, ex parte Mark-
monographs : Pillet, Des Persoimes wald, [1918] 1 K.B. 617, and Mark-
morales en Droit international priv4 wald v. A.O., (1920) 36 T.L.R. 197.
(1914) ; Schuster, The Nationality See belpw, § 307, and Hall, Foreign
and Domicile of Trading Corpora- Powers and Jurisdidion, § 20, who
tions, in vol. ii. (1917). pp. 57-85 of quotes, however, a decision of the
the Grotius Society ; Mamelok, Die French Cour de Cassation, according
Staatsangefiorigkeit der juristischen to which naturalisation in a British
Personen (1918) ; (irossmann, Wirt- colQny does not constitute a real
achaJUpclitisehe Belrachiangen uber naturalisation. But this decision is
die Slaatsangehorigkeit der juris- based on the Code Civil of France
tischen Peraonen (1918) ; Bnegger, and has nothing to do with the Law
Die Slaatsangehorigkeit der juris- of Nations. See also Westlake,
tischen Personen (1918) ; Martin- i. pp. 238-240.
NATIONALITY 465
But it must be emphasised that ' nationality/ mean-
ing citizenship of a certain State, must not be confounded
with ' nationahty ' meaning membership of a certain
nation in the sense of a race. Thus Enghshpaen, Scots-
men, and Irishmen are, despite their different nationality
as regards their race, all of British nationality as regards
their citizenship. Thus, further, although all Polish
iadividuals are of Polish nationality qua race, for many
generations there were no Poles qua citizenship.
§ 294. It will be remembered that nationahty is Function
the link between individuals and the benefits of the auty* '°°
Law of Nations.^ This function of nationality becomes
apparent with regard to iadividuals abroad, or to pro-
perty abroad belonging to individuals who are them-
selves within the territory of their home State, especially
on accoimt of one particular right and one particular
duty of every State towards all other States. The
right is that of protection over its citizens abroad which
every State holds, and occasionally vigorously exercises
towards other States ; it will be discussed in detail below,
§ 319. The duty is that of receiving on its territory
such of its citizens as are not allowed to remain ^ on the
territory of other States. Since no State is obHged by
the Law of Nations to allow foreigners to remain within
its boundaries, it may, for many reasons, happen that
certain individuals are expelled from all foreign countries.
The home State of expelled persons cannot refuse to
receive them on the home territory, the expelling States
having a right to insist upon this.^
§ 295. Although nationahty alone is the regular
means through which individuals can derive benefit
' See above, § 291. supremacy illuBtrate the function
" See below, § 326. of nationality. (See above, § 124. )
" Apart from the right of proteo- Thus, the home State can tax
tion, and the duty to receive ex- citizens living abroad in the interest
pelled citizens at home, the powers of home finance, can request them
of a State over its citizens abroad to come home for the purpose of
in consequence of its personal rendering military service, can
VOL. I. 2g
466 INDIVIDUALS
So-oaiied from the Law of Nations, there are three exception a
and L ' cases 1 in which individuals may come under the inter-
feote.^"''" iiational protection of a State of which they are not
subjects: (1) A State undertakes by an international
agreement the diplomatic protection of another State's
citizens abroad, and in this case the protected foreign
subjects are named 'proteges of the protecting States.
Such agreements naay either be intended to be per-
manerit — as when a small State, Switzerland for
instance, has no diplomatic envoy in a certain foreign
country where many of its subjects reside, or to be for
time of war only, a belHgerent handing over to a neutral
State the protection of its subjects in an enemy State.
(2) The League of Nations, acting through a State
or persons representing the League, undertakes the
diplomatic protection abroad of persons who are not, of
course, its citizens. Thus the Governing Commission of
the Saar Basin, representing the League of Nations, is
to ensure the protection abroad of the interests of the
inhabitants of that territory.^
(3) A State promises diplomatic protection within
the boundaries of Turkey and other Oriental countries
to certain natives. Such protected natives are hke-
wise named jytoteges, but they are also called ' de
facto subjects ' of the protecting State. Their posi-
tion is quite anomalous ; it is based on custom and
treaties, and no special rules of the Law of Nations itself
are in existence concerning them. Every State which
takes such de facto subjects under its protection can
act according to its discretion, and there is no doubt
that as soon as these Oriental States have reached a
level of civihsation equal to that of the Western members
punish them for crimes committed State, or to prevent them from pay-
abroad, can categorically request ing taxes to their home State, and
them to come home for good (so- the like,
called jus avocandi). And no State ^ See Borohard, §§ 203-205.
has a right forcibly to retain foreign " See Treaty of Peace with Ger-
citizens called home by their home many. Article 60 annex.
NATIONALITY 467
of the Family of Nations, the whole institution of de
facto subjects will disappear.
§ 296. As emigration involves the voluntary removal Nation-
of an individual from his home State with the intention Bmfgra-
of residing abroad, but not necessarily with the inten- *^°°-
tion of renouncing his nationahty, it is obvious that
emigrants may well retain their nationahty. Emigra-
tion is in fact entirely a matter of internal legislation
of the different States. Every State can fix for itself
the conditions under which emigrants lose or retain
their nationality, as it can also prohibit emigration
altogether, or can at any moment request those who
have emigrated to return to their former home, pro-
vided the emigrants have retained their nationahty of
birth. And it must be specially emphasised that the
Law of Nations does not, and cannot, grant a right of
emigration to every individual, although it is frequently
maiutained ^ that it is a ' natiiral ' right of every indi-
vidual to emigrate from his own State.^ What would
be possible, and is desirable, is that by a general inter-
national treaty concerning the acquisition and loss of
citizenship the several States should agree to grant to
every individual by their Municipal Laws the right to
emigrate.^
' Especially by American writers. (1897), p. 276. See also Gargas in
On the American standpoint con- 2?. F., v. (1911), pp. 278-316, 478-509.
oeming emigration, see Borohard, ' In accordance with Article 56 of
§§ 315-331. the Treaty of Peace with Bulgaria,
' Attention ought to be drawn to and the decision of the Principal
the fact that, to ensure the protec- Allied and Associated Powers, Greece
tion of the interests of emigrants and and Bulgaria signed, on IJovember
immigrants from the moral, hygienic, 27, 1919, a convention providing that
and economic point of view, the In- the subjeots of each party belonging
stitute of International Law, at its to racial, religious and linguistic
meeting at Copenhagen in 1897, minorities might freely emigrate to
adopted a body of fourteen principles the territory of the other. Misc. ,
conoemingemigrationunderthehead- No. 3 (1920), Cmd. 589. Other similar
ing ' Vceux relatif s k la Mati^re de treaties are believed to be under con-
I'Emigration ' ; see Annuaire, xvi. sideration.
468
INDIVIDUALS
III
MODES OP ACQUIEING AND LOSING NATIONALrTY
Vattel, i. §§ 212-219— Hall, §§ 67-7-2— Westlake, i. pp. 220-227— Lawrence,
§§ 94-95— Halleok, i. pp. 430-448— Hershey, Nos. 224-229— Moore, ui.
§§ 372-473— Taylor, §§ 176-183— Walker, § 19— BhintsohU, §§ 364-373—
Hartmann, § 81— Heffter, § 59— Stoerk in HoUzendorff, ii. pp. 592-630
—Garels, § 55— Liszt, § 11— UUmann, §§ 110 and 112— Bonfils, Nos. 417-
432— Despagnet, Nos. 318-327— Pradier-Fod6r6, iii. Nos. 1646-1691—
Rivier, i. pp. 303-306— Oalvo, ii. §§ 541-654, vi. §§ 92-117— Martens, ii.
§§ 44-48— Fiore, Code, Nos. 665-674 — Foote, Private International
Jurisprudence (3rd ed. 1904), pp. 1-51 — Dioey, Conflict of Laws, 2nd ed.
(1908), pp. 164-191 — Martitz, Daa Recht der StaatsangehSrigheit im
intemationalen Verkehr (1885) — Oogordan, La Nationaliti, etc. (2nd ed.
1890), pp. 21-113, 317-398— Lapradelle, De laNatioacUitdd'Origine (1893)
— Berney, La Nationalite (i I'Inatitiii de Droit international (1897) —
Bisooohi, Acquisio e Perdita deUa NazionalitA, etc. (1907) — Sieber, Das
Staatshiirgerecht in intemaiionalem Verkehr, 2 vols. (1907)— Lehr, La
NaiionalM dans les principaux Etati du Olobe (1909), and in if./., 2nd
Ser. X. (1908), pp. 285, 401, and 525— Edwards in the Journal qf the
Society of Comparative Legislation, New Ser. xv. pt. ii. pp. 108-
115— Borohard, §§ 263-273, and 315-336— In 1893 the British Govern-
ment addressed a circular to its representatives abroad requesting
them to send in » i-eport ooneerning the laws relating to nationality
and naturalisation in force in the respective foreign countries. These
reports have been collected and presented to Parliament and are con-
tinued from time to time. The reports up to 1893 are printed in
Martens, N.B.G., 2nd Ser. xix. pp. 515-760.
Five § 297. Although it is at present for Municipal Law
Ao°qiSi° to determine who is, and who is not, a subject of a State,^
Nation- ^^ ^® nevertheless of interest to the theory of the Law of
aiity. Nations to ascertain how nationality can be acquired
according to the Municipal Law of the different States.
The reason of the thing presents five possible modes of
acquiring nationality, and, although no State is obhged
to recognise all five, nevertheless all States practically
do so. They are birth, naturalisation, redintegration,
subjugation, and cession. '~' ~ '
§ 298. The first and chief mode of acquiring nation-
ahty is by birth ; indeed, the acquisition of nationahty
' Except in the case mentioned in § 293 n.
MODES OF ACQUIRING AND LOSING NATIONALITY 469
by another mode is exceptional, since the vast majority Aoqmsi-
of mankind acquires nationality by birth, and does not Nation-
change it afterwards. But no uniform rules exist ^^•'^
according to the Municipal Law of the different States
concerning this matter. Some States, as Germany
and Austria, adopted the rule that descent alone is '
the decisive factor,^ so that a child bom of their subjects
became ij>so facto by birth their subject hkewise, be
the child bom at home or abroad. According to this
rule, ill^timate children acquire the nationality of
their mother. Other States, such as Argentina, have
adopted the rule that the territory on which birth occurs
is exclusively the decisive factor.^ According to this
rule, every child bom on the territory of such State, ■^
whether the parents be citizens or aliens, becomes a
subject of such State, whereas a child bom abroad is
foreign, although the parents may be subjects. Again,
other States, as Great Britain ^ and the United States,
have adopted a mixed principle, since, according to their
Municipal Law, not only children of their subjects bom
at home or abroad become their subjects, but also such
children of ahen parents as axe bom on their territory.
§ 299. The most important mode of acquiring nation-
ality besides birth is tiiat of naturalisation in tiie wider
sense of the term. Through naturalisation, an alien
by birth acquires the nationality of the naturalising
^ Jua saiigtmie. Allegiance, or was a person to whom
J J ^.. a certificate of naturalisation had
been granted, or had become a British
' The Common Law of England subject through annexation of terri-
conceming nationality has several toiy, or was in the service of the Crown
times been altered by Statute. Ac- when the child was bom ; (e) was bom
oocding to § 1 of the British National- on board a British ship. See, how-
i^ and Status of Aliens Acts, 1914 ever, § 1 (3) as to the status of a person
and 1918, every person is a natural- bom before January 1, 1915. See
bom British subject vho (a) was bom Hall, Foreign Pouwrt and Juritdictum
within His Majesty's Dominions and (1S94), § 14 ; Edwards and Sargant
Allegiance ; (6) though bom out of in the Journal of the Soaety of Com-
His Majesty's Dominions, is the child paratice Ltgidation, New Sct. xiv.
rf a father who at the time of the (1914), pp. 314-336 ; Wilkinson in
child'sbirthwasa British subject, and the Lam Magazine and Sevietc, xL
was either bom within His ilajesty's (1915-1916), pp. 187-195.
470
nJDIVIDUAlS
sation.
Aoqiiiai- State. Accotding to the Municipal Law of the different
Nation- States natniaUsation may take place through six; different
^^ acts — namely, marriage, le^timation, option, acquisi-
NatoiaU- tiou of domicile, appointment as Government official,
grant on apphcation. Thus, according to the Municipal
Law of most States, an alien female marrying a subject
of such State becomes thereby ipso facto naturalised.
Thus, further, acc(»diiig to the Municipal Law of several
States, an iU^timate child bom of an alien mother,
and therefore an ahen itself, becomes ipso facto
naturalised through the father marrying the mother,
and thereby Intimating the child.^ Thus, thirdly,
according to the Munici|^ Law of some States, which
declare children of foreign parents bom on their terri-
tory to be aliens, such children, if, after having come
of age, they make a declaration that they intend to be
subjects of the country of their birth, become ipso facto
by such option naturalised. Again, fourthly, some
States, such as Venezuela, let an alien become naturalised
ipso facto by his taking up his domicile ^ on thor
territory. Some States, fifthly, let an alien become
naturalised ipso fajdo on appointment as a Government
offidaL And, lastly, in aU States naturalisation may
be procured through a direct act on the part of the
State granting nationality to an alien who has applied
for it. This last kind of naturalisation is naturalisa-
tion in the narrower sense of the term ; it is the most
important for the Law of Narions, and, whenever one
speaks of naturalisation pure and simple, such natuialisa-
* Kngli'th law has not adopted abroad no State can natuialije
this rule. foreigners against their wilL fot
' It is doubtful (see Hall, | 64) the same reason objection must be
whether the home State of indivi- taken to the law of some American
duals so naturalised against their will States according to which (see
must submit to this fpio/arfo natural- Borchard, i 232) naturalisation is
isation. See aboTe, ; 12-5, where the ip*o faeto acquired through a
rule has been stated that in con- foreigner buying real estate, oc
sideration of the personal supremacy haring a child bom to him, in the
of the home State orer its citizens State oonoraned.
MODES OP ACQUIRING AND LOSING NATIONAUTY 471
tdon through direct grant on application is meant ; it
will be discussed in detail below, §§ 303-307.
§ 300. The third mode of acquiring nationality is Acquia-
by so-called redintegration or resumption. Such indi- Natim-
viduals as have been natural-bom subjects of a State, ^^(,„ij
but have lost their original nationality through natural- Redmte-
isation abroad or for some other cause, may recover^" °^
their original nationahty on futfiUing certain conditions.
This is called redintegration or resumption, in contra-
distinction to naturalisation, the favoured person being
redintegrated and resimaed into his original nationality.
Thus, according to § 12 (2) of the British Nation-
ality and Status of Aliens Act, 1914, any child who has
ceased to be a British subject through its father ceasing
to be a British subject, may, within one year after
attaining its majority, by a declaration resume its
original British nationahty. Again, according to § 2 (5),
a woman who was a British subject previously to her
marriage to an alien, and whose husband has died or
whose marriage has been dissolved, may immediately
upon the happening of such an event apply for a
certificate of naturalisation readmitting her to British
nationality.
§ 301. The fourth and fifth modes of acquiring Acqniai-
nationality are by subjugation after conquest and by Nation-
cession of territory, the inhabitants of the subjugated ^^^ ,
and the ceded territory acquiring ipso facto by the sub- Subjnga-
jugation or cession the nationahty of the State which c^^
acquires the territory. These modes of acquisition
of nationahty are modes settled by the customary
Law of Nations ; details have been given above, §§ 219
and 240.
§ 302. Although it is at present left in the discretion Five
of the different States to determine the grounds on losing °
which individuals lose their nationahty, it is neverthe- ^|^°°'
less of interest to the theory of the Law of Nations to
472 DTDIVIDUAl^
take notice of these gromids. Five modes of losing
nationality must be stated to exist according to the
reason of the thing, although all five are by no means
recognised by aU the States. These modes are re-
lease, deprivation, expiration, option, and substitution.
(1) Release.— Some States, as Germany, give their
citizens the right to ask to be released from their
nationahty. Such release, if granted, denationalises
the released individual.
(2) Deprivation,. — For example, according to the
Municipal Law of some States, as, for instance, Bulgaria,
Greece, Italy, Holland, Portugal, and Spain, the fact
that a citizen enters into foreign civil or military service
without permission of his sovereign deprives him of his
nationahty.
(3) Expiration. — Some States have l^islated that
citizenship expires in the case of such of their subjects
as have left the country and stayed abroad a certain
length of time. For instance, a naturalised citizen of
the United States of America as a rule loses his citizen-
ship by residing for two years in the country of his
origin or for five years in any other foreign State. Or,
again, the American citizenship of a woman who acquired
it by marriage to an American expires in case she is hving
abroad at the time when her husband dies or her
marriage is dissolved, xmless within one year after such
an event she registers as an American citizen before the
United States consul.
(4) Option. — ^For example, some States — Great Britain
for instance^ — ^which declare a child bom of foreign
parents on their territory to be their natural-bom
subject, although he becomes at the same time, accord-
ing to the Municipal Law of the home State of the
parents, a subject of such State, give the right to such
child to make, after coming of age, a declaration that
* See British Nationality and Status of Aliens Act, 1914, § 14.
NATURALISATION IN ESPECIAL 473
he desires to cease to be a citizen.^ Or, to give another
example, according to the law of the United States, a
foreign woman who became an American citizen by
marriage to an American can, if she continues to reside
in the United States after the termination of the marital
relationship, renoimce her American citizenship by a
declaration. Such declaration of alienage creates if so
facto the loss of nationality.
(5) Substitvtion. — ^According to the law of many States,
as, for instance. Great Britain, the nationahty of their
subjects is extinguished ipso facto by their naturalisation
abroad, be it through marriage, grant on apphcation, or
otherwise. Some States, however, do not object to
their citizens acquiring another nationahty besides that
which they already possess.
Just as naturalisation abroad ipso facto extinguishes
the nationahty of their subjects according to the Muni-
cipal Law of some States, so, according to International
Law, through subjugation or cession, the inhabitants
of the conquered or ceded territory become subjects of
the State which annexes the territory, and their former
nationahty is extinguished by substitution of the new.^
IV
NATURALISATION IN ESPECIAL
Vattel, i. § 214— Hall, §§ 71-71*— Westlake, § i. pp. 232-237— Lawrence,
§§ 95-96— PhilUmore, i. §§ 325-332— Halleok, i. pp. 432-443— Taylor,
§§ 181-182— Walker, § 19— Wharton, ii. §§ 173-186— Moore, iii. §§ 377-
380— Wheaton, § 85— Hershey, Nob. 230-234— BluntsohU, §§ 371-372—
UUmann, §| 110-111— Pradier-Fod6r6, iii. Nos. 1656-1659— Calvo, ii.
|§ 581-646 — Martens, ii. §§ 47-48 — Stoioeeco, ^tude swr la NcUva-alisaiion
(1875) — Folleville, Traiti de la Natv/ralitation (1880) — Cogordan, La
' But this option cannot be exer- ' See above, § 301. Concerning
oised in time of war so as to make the option sometimes given to in-
the declarant an enemy. Rex v. habitants of ceded territory to retain
Commamdmg Officer, etc., (1917) 33 their former nationality, see above,
T.L.R. 252. § 219.
474
ETDIYIDUAIS
SmUammOU, ete. 2rd ed. 1880), pp. UT *i '07-313— IWfa«aie, ^ 2a
XatMralimtiem (ia:^))— Hasoqaea, 7<=.-! £a» of AUau, ^-ju (1806), pp^
91-121— FlegDtt, JTgtfKwsf^ oatf JTolvaiwIaaB. etc., 2 tbIs. «Ee» ed.
V--' riHimiiii, Za Satmr^isaaeme a913>— Bon^^iid, II 23S-3SB;
and 2e3-2';3— Hut, Edwaida, Soi^nt aad FfaDineKe is ihe Jimimal
of tie SedOf €f OumpanMtim Ltgidatitm, Xe? S^r. n. fISOOK ppu
11-36; iiT. I1&14. pp. 314-336, and x\«L (1917), pp. 165-lTl—
W-Jkneon in tlie j:a» Jfo^^ajw ami Bemem, xL (191»-lii. pp.
Is7-199 — EdvBzds m tiie lam Qmawterig Saiem, xez. tl914>, ^.
433^17.
Goi!£ep- § 303. Xatmal^taon in the liarrower sense of tiie
iiBport- team — m conteadbtiitction to natmalisatiDn ij^o fado
^^^ tiuon^ mairiage:, kgttimation, option, domicile, and
8»t«»- GovemTnent office (5«e above, § 299) — must be defined
as lec^tion of an alien into die citizenship erf a State
tJunn^ a fozmal act on application of the faTtnned
individnaL InteEoational Law does not at jaeseatk |ao-
vide any roles for such zeceptkni, but it rect^mses tke
natural competraice of eveiy State, as a sovero^n, to
increase its population throngh imtntalisaticHi, si&aa^
a State might by its Mamc^pal law be prenaited frran
making use of this natmal competence.^ In s^ate,
however, of the &ict that natnialtsaticm is at preaaoit
still a domestic a&ir of the difiraent States, it is nevear-
thdess of special importance to the theory and prai^iee
of the Law of Nations. This is the case becaose
naturalisation is e&cted throng a special grant of the
natmalisiiig State, and r^aiady involves either a chai^
or a multipHcation of nationality, facts which can be, and
have been, the sonxce of grave intematicHial comfliefB.
In the face of the fact that millions of dozens emirate
every year from their home conntries with the intention
of settling permanently in f ordgn countries, where the
majority of them become aioiier or later natnraliaed,
tiie international importance of naturalisation cannot
be denied.
* 6-t there is, ss iir as I knov, do -litaluM aliuffAhet izam
oriliaed &ate in prytfnrR wluefc Sata^BB.
NATURALISATON IN ESPECIAL 475
§ 304. The objcot of naturalisation is alwaj^ an aKen. object of
Some States will ntvtiiraliso such aliens only as are satlo^.
Stateless because they never have been citizens of
another State or because they have i-enounced, or have
l>eeu it»let\sed from, or deprived of, tlie citizenship of
their home State. But other Suites, as Great Britain,
naturalise also suoh aliens as are. and remain, subjects
of their home Stntos. Most States luituitvlise such per-
son only rts has taken up his domicile in their couutry.
hjvs Ihhhv nv^iding theiv for son\e length of time, suid
intends pernumeiitly to remain in their oouiitry. And
aeeoixling to the Municipal Ljuv of many Stjvtes, natu-
raUsatiou of a marrieii individual includes that of his
wife and of his childi"en under age.' But although every
rthen may be naturaliseil. no jUien has, according to the
Municipal l>'tw of most States, a claim to become
natundis(\l, naturalisation being a matter of discretion
for t^e Go^n^runleut, which cau refuse it without giWng
ai\v iwvsous.
§ 305. If grantetl. naturalisation makes an alien a OmkU-
eitizen. But it is left to the discretion of the natumlis- N«tu»K-
ing State to grant naturalisation upon any conditions ®*'''»^-
it likes. And it n\ust be sptvially mentioned that
naturjdisation need not give an alien absolutely the
same rights as are possesstxl by natui-al-born citizens.
Thus according to Article '2 of the Constitution of the
United States of America a natun^lisM alien can never
be elettod President.^ However, according to § 3
of the Britisli Nationality and Status of Aliens Act.
1914, a naturalised Britisli subject is entitled (subject
to the provisions of tJiis Act) to all rights, powers, and
' Ao«onling to § 5 »{ th» British ' A (or«iguer n«ntralis«d in Or^at
N»tionaMty*ml Status v>f Alums Aol, Britain by K>ttMS cvf denitation
1914. tke eWWwn btwm befwro th» <lvvs not «e<)uii:« the sduuo Hsihts sis
S^xt ttf a Q*wii&vkt«< of n»t<nrttlisa- a nstural-Kwn British snbj^vt, 81-.J
Uon to aut alxMX do nv>t Inx^om* Hall. ilW*^ /^Mfrrs <m«J ./irf-ktyhV.'iew
British subjects unless their uauws (IStMt, S 4i
are inohidsd in the certificate.
476
INDIVIDUALS
privileges to which a natural-born British subject is
entitled.
E£feot of § 306. Since the Law of Nations does not at present
sation^^ ' Comprise any rules concerning naturalisation, the efiect
HPon of naturalisation upon previous citizenship is exclusively
Frevious jr jr r j
Citizen- a matter for the Municipal Law of the States concerned.
'' ''^' Some States, as Great Britain,^ have legislated that one
of their subjects becoming naturalised abroad thereby
loses his previous nationaUty ; but other States have
not done this. Be that as it may, there can be no doubt
that a person who is naturahsed abroad, and temporarily
or permanently returns to the coimtry of his origin, can
be held responsible ^ for all acts done there at the time
before his naturaHsation abroad.^ The British Nation-
ality and Status of AHens Act, 1914, expressly provides,
in § 16, that a British subject who ceases to be a
British subject shall not thereby be discharged from
any obhgation, duty, or hability in respect of any act
done before he ceased to be a British subject.
Naturaii- § 307. The present law of Great Britain * concerning
in*Great naturaHsatiou is mainly contained in the British Nation-
Britain, ahty and Status of AUens Act, 1914 (4 & 5 Geo. v.
c. 17), as amended by the British NationaUty and Status
of Ahens Act, 1918 (8 & 9 Geo. v. c. 38). According
to § 2 of the principal Act, an alien may, upon
appUcation, become naturalised by the grant of a certi-
ficate of naturaHsation if he fulfils the following con-
' Up to the Naturalisation Act of given with regard to their subjects
1870, Great Britain upheld the rule naturalised abroad.
nemo potest extiere patriam. Its * That a British subject who, after
antithesis is the rule ne quia invitus the outbreak of hostilities, becomes
civitatemut'etur,nevemcivitatemaneat naturalised in an enemy country,
mvitua (Cicero, 'Pro Balbo,' o. 13, commits an act of treason was de-
§ 31 ; see Rattigan, Private Inter- cided in Eex v. Lynch, [1903] 1 K.B.
national Law (1895), p. 29, No. 21). 444. See also below, vol. ii. § 101.
* Many instructive cases concern- '' See M'^Jair in the Law Quarterly
ing this matter are reported by Review, xxxv. pp. 213-220. As re-
Wharton, ii. §§ 180 and 181, and gards naturalisation in the United
Moore, iii. §§ 401-407. See also States of America, see Moore, iii.
Hall, § 71, where details concerning §§ 381-389, and Dyne, Naturalisation
the practice of many States are in the United States (1907).
NATURALISATION IN ESPECIAL 477
ditions : He must have resided in the United Kingdom
for not less than one year immediately preceding his
appHcation, and previously for four years within the
last eight years before his application either in the
United Kingdom or in some other part of the British
dominions. Equivalent to such residence is service
imder the Crown for not less than five years within the
last eight years before the appKcation. Moreover, under
the Amending Act, a period spent in the service of the
Crown may, if the Secretary of State thinks fit, be
treated as equivalent to a period of residence in the
United Kingdom. The appHcant must be of good
character, must have an adequate knowledge of the
English language, and must intend, if his appHcation is
granted, either to reside within the British dominions
or to enter or continue in the service of the Crown. The
grant of a certificate of naturahsation is within the
absolute discretion of the Secretary of State. A certi-
ficate does not take effect until the applicant has taken
an oath of allegiance.
Part of the period of residence, or even the whole of
it, may be dispensed with in certain cases. Thus, as
was stated above, § 300, a woman who was a British
subject before her marriage with an ahen, may, if the
marriage has been dissolved or her husband has died,
be at once readmitted to British nationality without
any requirement as to previous residence. Further,
in any other special case — § 2 does not define the
special case, but leaves the matter entirely to the
discretion of the authorities — a certificate of natural-
isation may be granted to an appUcant who has resided
within the United Kingdom for one year immediately
preceding the appUcation and for four additional years
in some part of His Majesty's dominions, or has served
five years under the Crown, although the four addi-
tional years of residence or the term oi service under the
4:78 iNDivrouALs
Crown were not within the last eight years before the
apphcation. Again, in any special case, under § 5
(ii.) (as amended), a certificate of naturalisation may
be granted to any minor whether or not the conditions
required by the Act have been compUed with.^
According to § 4, a special certificate of naturalisa-
tion may be granted to any person with respect to
whose nationaUty as a British subject a doubt exists,
and it may be specified in the certificate that it has
been granted for the purpose of quieting doubts as to
the right of the person to be a British subject. The
grant of such a certificate is not to be deemed an
admission that the person to whom it has been granted
was not previously a British subject.
Naturalisation of an ahen includes that of his wife (§10),
but does not include naturahsation of any child born
before the apphcation unless its name is mentioned in
the certificate. Any child so named may, within one year
after attaining its majority, divest itself of itg British
nationahty by making a declaration of ahenage (§ 5).
A certificate of naturahsation is to be revoked under
§ 7 (as amended), when the Secretary of State is
satisfied (a) that it was obtained by false representa-
tion or fraud, or by concealment of material circum-
stances, or (6) that the person to whom the certificate
was granted has shown himself by act or speech to be
disaffected or disloyal to His Majesty. It is also to be
revoked if the Secretary of State is satisfied that the
holder (c) during any war in which Great Britain is
engaged, has unlawfully traded or communicated with
the enemy or his subjects, or has been associated
with any business which is to his knowledge
carried on in such manner as to assist the enemy,
* As to the grant o£ oertifioates during the World War, see § 3 (2)
of naturalisation to subjects of States of the Amending Act.
which were enemies of Great Britain
NATUEALISATION IN ESPECIAL 479
or (d) within five years of the date of the grant of
the certificate has been sentenced by a court in the British
dominions to not less than twelve months' imprison-
ment, or to penal servitude, or to a fine of not less than
£100, or (e) was not of good character at the date of
the grant of the certificate, or (/) has since that date
been for not less than seven years ordinarily resident
out of the British dominions, otherwise than as a
representative of a British business or an institution
estabhshed within the British Empire or in the service
of the Crown, and has not maintained substantial
connection with the British dominions, or (g) according
to the law of a State at war with Great Britain, remains
a subject of that State, and (in cases (c) to (g)) that the
continuance of the certificate is not conducive to the
pubhc good.^ When a certificate of naturalisation is
revoked, the Secretary of State may, as a rule,^ direct
that the wife and children under age of the person
whose certificate is so revoked, are to cease to be British
subjects ; but if no such direction is given, the wife
and children under age remain British subjects unless
the wife makes a declaration of ahenage.
According to § 8 of the Act, the Government of
any British possession has the same power to grant or
revoke a certificate of imperial naturalisation as the
Government of the United Kingdom ; but, except in
the case of Canada, Australia, New Zealand, South
Africa, Newfoundland, and India, any certificate of
imperial naturahsation to be granted by a British
possession must first be submitted for the approval of
the Secretary of State. However, neither the provisions
of the Act regarding naturalisation nor any certificate
granted thereunder are to be effective in any of the
^ As to revocation of certificates Amending Act.
granted during the World War to a * As to the exception, see § 7o (16)
former subject of a State then at war of the Amending Act.
with Great Britain, see § 3 (1) of the
480
INDIVIDUALS
self-governing British dominions which do not adopt
them (§ 9). These dominions may legislate on their
own account cohcerning local naturalisation, in contra-
distinction to imperial naturaMsation, and aliens locally
naturahsed within a British dominion according to
local laws are for all international purposes subjects
of the British Crown, although such naturaUsation does
not make them British subjects in the United Kingdom.^
Where Great Britain has entered into a convention
with a foreign State to the effect that the subjects of such
State who have been naturalised in Great Britain may
divest themselves of their status as British subjects,
such naturahsed British subjects may, within the limit
of time provided by the convention, through a declara-
tion of ahenage, shake off their acquired British nation-
aHty(§15).
Not to be confounded with naturaMsation proper is
naturahsation through denization, by means of letters
patent under the Great Seal. It is expressly provided
by § 25 of the British NationaHty and Status of Ahens
Act, 1914, that nothing in this Act shall affect the
grant of letters of denization by His Majesty. This
way of making an aUen a British subject is based on a
very ancient practice ^ which has not yet become
obsolete. Such denization requires no previous resi-
dence within the United Kingdom. ' A person may be
made a denizen without ever having set foot upon
British soil. There have been, and from time to time
there no doubt will be, persons of foreign nationahty
to whom it is wished to entrust functions which can
only be legally exercised by British subjects. In such
instances, the condition of five years' residence in the
United Kingdom would generally be prohibitory. The
difficulty can be avoided by the issue of letters of
denization ; and it is beheved that on one or two
' See above, § 293, ' See Hall, Foreign Powers amd Jurisdiction, § 22.
DOUBLE AND ABSENT NATIONALITY 481
occasions letters have in fact been issued with the view
of enabling persons of foreign nationaUty to exercise
British consular jurisdiction in the East ' (Hall).
V
DOUBLE AND ABSENT NATIONALITY
Hall, §§ 71 and 74— Westlake, i. pp. 228-232— Lawrence, § 96— Halleek, i.
pp. 440-443— Taylor, § 183— Wheaton, § 85 (Dana's Note)— Moore, lii.
§§ 426-430— Bluntsohli, §§ 373-374— Hartmann, § 82— HefFter, § 59—
Stoerk in HoUzend(yrff, ii. pp. 650-655— UUmann, § 110— Bonfils, No. 422
— Pradier-Fod6r(S, iii. Nos. 1660-1665— Rivier, i. pp. 304-306— Calvo, ii.
§§ 647-654— Martens, ii. § 46— Borohard, §§11 and 253-262— Bodmann
in the Archiv fiiir offeiitlichea Becht, xii. (1897), pp. 200 and 317 —
Editorial comment in A.J., ix. (1915), pp. 942-948.
§ 308. As the Law of Nations has at present no rules Possi-
concerning acquisition and loss of nationahty beyond ^o„^i°^
this, that nationality is lost and acquired through and
subjugation and cession, and as the Municipal LawsNatSli-
of the different States differ in many points concerning *^'*^"
this matter, the necessary consequence is that an indi-
vidual may possess more than one nationahty as easily
as none at all. The points to be discussed here are
therefore : How double nationality occurs ; the posi-
tion of individuals with double nationahty ; how absent
nationahty occurs ; the position of individuals destitute
of nationahty ; and, lastly, means of redress against
difficulties arising from double and absent nationahty.
It must, however, be specially mentioned that the
Law of Nations is concerned with such cases only of
double and absent nationahty as are the consequences
of conflicting Municipal Laws of several absolutely
different States. Such cases as are the consequence
of the Municipal Laws of a Federal State, or of a State
which, as Great Britain, allows outlying parts to legislate
on their own account concerning naturahsation, fall
outside the scope of the Law of Nations. For, inter-
VOL. I. 2h
oociire.
482 INDIVIDUALS
nationally, such individuals appear as subjects of such
Federal State or the British Empire, whatever their
position may be inside these States.
How § 309. An individual may own double nationality
Naw knowingly or unknowingly, and with or without in-
aiity tention. And double nationahty may be produced by
every mode of acquiring nationahty. Even birth can
vest a child with double nationahty. Thus, every child
born in Great Britain and of German parents acquires
at the same time British and German nationahty, for
such child is British according to British, and German
according to German Municipal Law. Double nation-
ahty can hkewise be the result of marriage. Thus, a
Venezuelan woman marrying an Enghshman acquires
according to British law British nationahty, but accord-
ing to Venezuelan law she does not lose her Venezuelan
nationahty. Legitimation of illegitimate children can
produce the same effect. Thus, an illegitimate child
of a German born in England of an English mother is a
British subject according to British and German law,
but if after the birth of the child the father marries the
mother and remains a resident in England, he thereby
legitimates the child according to German law, and
such child acquires thereby G«rman nationahty without
losing its British nationahty, although the mother does
lose her British nationahty. It is not necessary to
give examples of double nationahty caused by option,
taking domicile abroad, accepting foreign Government
oflB.ce, and redintegration, and it suffices merely to draw
attention to the fact that naturalisation in the narrower
sense of the term is frequently a cause of double nation-
ahty, since individuals may apply for, and receive,
naturahsation in a State without thereby losing the
nationahty of their home State. Pecuhar cases of
double nationahty are made possible by § 10 of
the British Nationahty and Status of Ahens Act, 1914
DOUBLE AND ABSENT UATIOIfALmr 483
(as amended by the Act of 1918), according to which the
wife of a British subject who becomes an alien may by
a declaration maintain her British nationaUty, and a
British-bom wife of an ahen who is a subject of a State
at war with Great Britain, may be allowed to resume
British nationaUty if the Secretary of State is satisfied
that this is desirable.
§ 310. Individuals owning double nationality bear, Powtum
in the language of diplomatists, the name svj^ mixtes. ^^^
The position of such ' mixed subjects ' is awkward on ^i .
accoimt of the fact that two diiferent States claim them Natwn-
as subjects, and therefore claim their allegiance. In *^'
case a serious dispute arises between these two States
which leads to war, an irreconcilable conflict of duties
is created for t^ese unfortunate individuals. It is all
very well to say that such conflict is a personal matter,
which concerns neither the Law of Nations nor the
two States in dispute. As far as an individual has,
through naturalisation, option, and the like, acquired
his double nationality, one may say that he has placed
himseH in that awkward position by intentionally and
knowingly acquiring a second nationality without being
released from his original nationaUty. But those who
are natural-bom si/jets mixtes in most cases do not know
it before they have to face the conflict, and their difficidt
position is not their own fault.
Be that as it may, there is no doubt that each of the
States claiming such an individual as subject is inter-
nationaUy competent to do this, although they cannot
claim him against one another, since each of them
correctly maintains that he is its subject.^ But against
third States each of them appears as his sovereign,
* I cannot agree with the ntate- the Utter a marriage permitted by
meat in it« generality ma<]« by We«t- its lawn to ito subjeeta, an linglish
lake, i, p. -228 : 'If, for iimVaaee, eoart would have to accept him as a
a man, claimed ax a national both married man.' If this were correct,
by tlie United Kingdom and by the marriage of a German -who,
another conntry, thotUd contract in without having given np his German
occurs.
484 INDIVIDUALS
and it is therefore possible that each of them can
exercise its right of protection over him within third
States. On the other hand, a third State can treat an
individual possessing two nationalities as a subject of
either of the two States to which he owes allegiance.
Thus an Austrian by birth who had become naturalised
in Chili, but had not thereby lost his Austrian nation-
aUty, and who had become resident in England, was
compelled to register in England as an ahen enemy at
the outbreak of the World War.
How § 311. An individual may be destitute of nationahty
Nition- knowingly or unknowingly, intentionally or through no
»'i*y fault of his own. Even by birth a person may be State-
less. Thus, an illegitimate child bom in Giermany of
an English mother is actually destitute of nationahty,
because according to German law it does not acquire
German nationahty, and according to British law it
does not acquire British nationahty. Thus, further, aU
children bom in Germany of parents who are destitute
of nationahty are themselves, according to German law.
Stateless. But Statelessness may take place after birth.
All individuals who have lost their origiQal nationahty
without having acquired another are, in fact, destitute
of nationahty.
§ 312. That Stateless individuals are objects of the
Law of Nations in so far as they fall imder the territorial
supremacy of the State on whose territory they hve,
there is no doubt. But since they do not own a
citizenship, has become naturalised his domicile and becomes naturalised
in Great Britain and has afterwards in England ; in this case the English
married his niece in Germany, would courts would have to recognise the
have to be recognised as legal by the marriage as legal because German
English courts. The correct solution law does not object to a marriage
seems to me to be that such marriage between uncle and niece, and because
is legal in Germany, but not legal in the marriage was concluded before
England, because British law does the man took his domicile in England
not permit marriage between uncle and became a British subject. See
and niece. The case is different Foote, Private Intematumal Jaris-
when a German who marries his prudence, 3rd ed. (1904), p. 106, and
niece in Germany afterwards takes the cases there cited.
DOUBLE AND ABSENT NATIONALITY 485
nationaKty, the link^ by which they could derive Position
benefits from International Law is missing, and thus vidnais
they lack protection as far as this law is concerned, of Nation-
Their position may be compared to vessels on the open auty.
sea not sailing under the flag of a State, which like-
wise do not enjoy any protection. In practice. Stateless
individuals are in most States treated more or less as
though they were subjects of foreign States, but how-
ever much they are maltreated,^ International Law^
cannot aid them.
§ 313. Double, as well as absent, nationaUty of indi- Redress
viduals has from time to time created many difficulties ^^.
for the States concerned. As regards the remedy for*'®^?^"=-
1 • • • 1 ing from
such difficulties, it is comparatively easy to meet those Double
created by absent nationaUty. If the number of State- S)8ent
less individuals increases much within a certain State, ^?£°°"
. . auty.
the latter can require them to apply for naturalisation
or to leave the country ; it can even naturalise them
by Municipal Law against their will, as no other State
will, or has a right to, interfere, and as, further, the
very fact of the existence of individuals destitute of
nationaKty is a blemish in Municipal, as well as in
International Law. Much more difficult is it, how-
' See above, § 291. them in every way according to dis-
' It cannot be considered mal- cretion without any foreign State
treatment if a State compels indi- being able to exercise a right of
viduals destitute of nationality either protection over them. See Rey in
to become naturalised or to leave the R.O., x. (1903), pp. 460-526; Bar
country. See below, § 313. in R.I., 2nd Ser. ix. (1907), pp.
' The position of the Jews in 711-716 ; Stambler, L'Sistoire det
Roumania before 1919 furnished a l»raSitesB(mmaineetle Droit d'liUer-
sad example. According to Muni- vention (1913) ; Kohler and Wolf,
cipal Law they were, with a few Jevjish Di$abUitiei in the Balkan
exceptions, considered as foreigners State* (1916). See also above, § 293.
for the purpose of avoiding the con- But on December 9, 1919, Roumania
sequences erf Article 44 of the Treaty undertook by a treaty with the
of Berlin, 1878, according to which Principal Allied and Associated
no religious disabilities were to be Powers (Treaty Ser. (1920), No. 6,
imposed by Roumania upon her Cmd. 588), to recognise as Rouma-
subjects. But as these Jews were nian subjects ipio facto and without
not subjects of any other State, any formality Jewish inhabitants
Roumania compelled them to render who were Stateless,
military service, and actually treated
486 iNDivrDUAis
ever, to find, within the Umits of the present rules of
the Law of Nations, means of redress against conflicts
arising from double nationality. Very grave disputes
indeed have occasionally occurred between States on
account of individuals who were claimed as subjects by
both sides. Thus, in 1812, a time when England still
kept to her old rule that no natural-born Enghsh subject
could lose his nationahty, the United States went to
war with England because — ^apart from other reasons —
the latter impressed Englishmen naturalised in America
from on board American merchantmen, claiming the
right to do so, as according to her law these men were
stiU Enghsh citizens. Thus, further, Prussia frequently
had disputes with the United States during the sixties
of the last century on account of Prussian individuals
who, without having rendered mdhtary service at home,
had emigrated to America to become naturalised there,
and had afterwards returned to Prussia.^ Again, during
^ The eases of Martin Koezta and to attack the Austrian man-of-war
of August Piepenbrink ought here in case she would not give up her
to be mentioned : prisoner, and an arrangement was
(1) Koszta was a Hungarian sub- made that Koszta should be delivered
ject who took part in the revolu- into the custody of the French consul
tionary movement of 1848, escaped at Smyrna until the matter was
to the United States, and in July settledbetween the United states and
1852 made a declaration under oath, Austrian Governments. Finally,
before a proper tribunal, of his Austria consented to Koszta being
intention to become naturalised brought back to America. Although
there. After remaining nearly two Koszta was not yet naturalised, the
years in the United States, but United States claimed a right of
before he was really naturalised, he protection over him, since he had
visited Turkey, and obtained a taken up his domicile on her territory
lezlcereh, a kind of letter of safe with the intention of becoming
conduct, from the American ohargfe naturalised there in due time, and
d'affaires at Constantinople. Later had thereby in a sense acquired the
on, while at Smyrna, he was seized national character of an American,
by Austrian officials and taken on See Wharton, ii. § 175 ; Mooro> iii.
board an Austrian man-of-war with §§ 490-491 ; Martens, Games dWbre),
the intention of bringing him to v. pp. 583-599 ; Borchard, § 250.
Austria, to be there punished for his (2) August Piepenbrink was a
part in the revolution of 1848. The German subject who had emigrated
American consul demanded his re- to America, and in 1910 had filed
lease, but Austria maintained that his declaration of intention to become
she had a right to arrest Koszta naturalised. In November 1914,
according to treaties between her and before he was naturalised, and at a
Turkey. Thereupon the American time when the Allied Powers were
man-of-war Saint LouU threatened taking all enemy subjects of military
DOUBLE AND ABSENT NATIONALITY
487
the time of the revolutionary movements in Ireland
in the last century before the Naturalisation Act of
1870 was passed, disputes arose between Great Britain
and the United States on account of such Irishmen as
took part in these revolutionary movements after
having become naturalised in the United States.^ It
would seem that the only way in which all the diffi-
culties arising from double and absent nationahty cotdd
really be done away with would be for all the Powers
to agree upon an international convention, according
to which they undertook the obligation of enacting by
their Municipal Law such corresponding rules regarding
acquisition and loss of nationahty as made the very
occurrence of double and absent nationahty impossible.^
age from neutral vessels for the
purpose of making them prisoners of
war (see below, voL ii. § 413), Piepen-
brink was a waiter on the American
vessel Wmdber. The United States
was at that time neutral. The
Wmdber was stopped on the high
seas by the French cruiser OonM;
Piepenbrink was taken off, brought
to Jamaica, and there handed over to
the British authorities. The United
States Government demanded his
release from the Erenoh as well as
the British Government. This was
at first refused, because he was not
a HAturalised American citizen ; but
as the United States Government in-
sisted, the British and French Govern-
ments decided to liberate him ' as a
friendly act, while reserving the ques-
tion of principle involved.' Seevi./.,
ix, (1915), Supplement, pp. 353-360.
' The United States has, throu^
the so-called 'Bancroft Treaties,'
attempted to overcome conflicts
arising from double nationality.
The fest of these treaties was con-
cluded in 1868 with the North
German Confederation, the precursor
of the German Empire, and signed
on behalf of the United States by
her minister in Berlin, George
Bancroft. (See Wharton, ii. §§ 149
and 179 ; Moore, iii. §§ 391-400, and
Borohard, §§ 239-240.) In the same
and the fcdlowing years treaties of
the same kind were concluded with
many other States, the last (as far
as European States are concerned)
with Portugal in 1908. A treaty of
another kind, but with the same
object, was concluded between the
United States and Great Britain
on May 13, 1870. (See Martens,
N.B.O., XX. p. 524, and Moore, iii.
§ 397.) All these treaties stipulate
that naturalisation in one of the con-
tracting States shall be recognised by
the other, whether the naturalised
individual has, or has not, previously
been released from his original
citizenship, provided he has resided
for five years in such country. And
they further stipulate that such
naturalised individuals, in case they
return after naturalisation into their
former home State and take their
residence there for some years, either
ipso /ado become again subjects of
their former home State and cease
to be naturalised abroad (as the
Bancroft Treaties), or can be rein-
stated in their former citizenship, and
cease thereby to be naturalised abroad
(as the treaty with Great Britain).
' The Institute of International
Law formulated at its meeting in
Venice in 1896 six rules, which, if
adopted on the part of the different
States, would do away with many
of the difficulties. See Anmtmre,
XV. p. 270.
488 INDIVIDUALS
VI
RECEPTION OF ALIENS AND RIGHT OF ASYLUM
Vattel, ii. § 100— Hall, §§ 63-64— Westlake, i. pp. 215-217— Lawrence, §§
97-98— Phillimore, i. §§ 365-370— Twiss, i. § 238— Halleok, i. pp. 493-
495— Taylor, § 186— Walker, § 19— Wharton, ii. § 206— Wheaton, § 115,
and Dana's Notte — Moore, iv. §§ 660-566 — Hershey, Nob. 237-249—
Bluntsohli, §§ 381-398— Hartmann, §§ 84-85, 89— Heffter, §§ 61-63—
Stoerk in HoUzendorff, ii. pp. 637-650— Gareis, § 57— Liszt, § 26—
UUmann, §§ 113-115— Bonfils, Nos. 441-446— Despagnet, Nos. 338-343
— Rivier, i. pp. 307-309— Nys, ii. pp. 275-283— Calvo, ii. §§ 701-706, vi.
119 — Martens, ii. § 46 — Overbeck, Niederlassimgs/reiheit wnd Autwei-
tungsrecht (1906) — Henriques, The Law of Alieni, etc. (1906) — Sibley
andElias, The Aliens Act, etc. (1906) — Proceedimgi of the American Society
of International Law, v. (1911), pp. 65-116 — Borchard, § 26.
No obii- § 314. Many writers ^ maintain that every member
fdmit *° of the Family of Nations is boimd by International
Aliens. L^^ f^ admit all aliens into its territory fdr aU lawful
purposes, although they agree that every State could
exclude certain classes of ahens. This opinion is gener-
ally held by those who assert that there is a funda-
mental right of intercourse between States. It will be
remembered ^ that no such fundamental right exists,
but that intercourse is a characteristic of the position
of the States within the Family of Nations, and, there-
fore, a presupposition of the international personahty
of every State. A State, therefore, cannot exclude ahens
altogether from its territory without violating the spirit
of the Law of Nations, and endangering its very member-
ship of the Family of Nations. But no State actually
does exclude ahens altogether. The question is only
whether an international legal duty can be said to exist
for every State to admit all unobjectionable ahens to
all parts of its territory. And it is this duty which
must be denied as far as the customary Law of Nations
is concerned. It must be emphasised that, apart from
' See, for instance, Bluntsohli, § 381, and Liszt, § 25.
• See above, § 141.
RECEPTION OF ALIENS AND RIGHT OF ASYLUM 489
general conventional arrangements, as, for instance,
those concerning navigation on international rivers,
and apart from special treaties of commerce, friendship,
and the Uke, no State can claim the right for its subjects
to enter into, and reside on, the territory of a foreign
State. The reception of aUens is a matter of discretion,
and every State is by reason of its territorial supremacy
competent to exclude aliens from the whole, or any part,
of its territory. And it is only by an inference from this
competence that Great Britain,^ the United States of
America,^ and other States have made special laws
according to which paupers and criminals, as well as
diseased and other objectionable aliens, are prevented
from entering their territory. Every State is, and must
remain, master in its own house, and this is of special im-
portance with regard to the admittance of aUens. Of
course, if a State excluded all subjects of one State only,
this would constitute an vmiriendly act, against which
retorsion would be admissible ; but it cannot be denied
that a State is competent to do this, although in practice
such wholesale exclusion is improbable in normal times.
Hundreds of treaties of commerce and friendship exist
between the members of the Family of Nations accord-
ing to which they are obUged to receive each other's
unobjectionable subjects, and thus in practice the matter
is settled, although in strict law every State is com-
petent to exclude foreigners from its territory.^
§ 315. It is obvious that, if a State need not receive
^ See the Aliens Act, 1905 (5 Edw. law prior to the World War.
VII. 0. 13), the Aliens Restriction ^ See Bouv6, A Treatise on the
Act, 1914 (4 & 5 Geo. v. o. 12), Laws governing the Exclusion and
and the Aliens Restriction (Amend- Exprdsion of Aliens in the United
ment) Act, 1919 (9 & 10 Geo. v. States (\^\9,).
c. 92), especially § 16 of the latter, ' The Institute of International
which relates to the repeal of Law adopted at its meeting at
the Aliens Act, 1905. See also Geneva in 1892 (see Annuaire, xii.
Henriques, The Law of Aliens, etc. p. 219) forty-one articles conoern-
(1906), and Sibley and Elias, The ing the admission and expulsion of
Aliens Act, etc. (1906), with regard aliens ; Articles 6-13 deal with the
to the position of aliens under British admittance of aliens.
490
INDIVIDUALS
^^^®P*^°° aliens at all, it can receive them only under certain
under Conditions. Thus, for example, Kussia, before the World
tions. War, did not admit aliens without passports, and if
the ahen adhered to the Jewish faith he had to submit
to a number of special restrictions.^ Thus, further,
during the time Napoleon in. ruled in France, every
alien entering French territory from the sea, or from
neighboiiring land, was admitted only after having
stated his name, nationaUty, and the place to which he
intended to go. Some States, as Switzerland, make a
distinction between such aUens as intend to settle down
in the country, and such as intend only to travel in the
country ; no ahen is allowed to settle in the country
without having asked for and received a special author-
isation, whereas the country is open unconditionally to
all aliens who are merely travelling.
So-called § 316. The fact that every State exercises terri-
Asyium! torfal Supremacy over all persons on its territory,
whether they are its subjects or aliens, excludes the
prosecution of aliens thereon by foreign States. Thus,
a foreign State is, provisionally at least, an asylum for
every individual who, being prosecuted at home, crosses
its frontier. In the absence of extradition treaties
stipulating the contrary, no State is by International
Law obUged to refuse admittance into its territory to
such a fugitive or, in case he has been admitted, to expel
him or deliver him up to the prosecuting State. On
the contrary. States have always upheld their com-
petence to grant asylum, if they choose to do so. Now
the so-called right of asylum is certainly not a right pos-
sessed by the ahen to demand that the State into whose
^ Many special restrictions have other formalities is at present gene-
been imposed upon the admission ral ; but it is not possible to discuss
of aliens, especially former enemy these in a general treatise. See the
aliens, in Great Britain and in other Aliens Restriction (Amendment) Act,
States for the period of reconstruc- 1919 (9 & 10 Geo. v. c. 92), and the
tion following the World War, and Aliens Order, 1920, made there-
the requirement of passports and under.
POSITION OF ALIENS AFTER RECEPTION 491
territory he has entered with the intention of escaping
prosecution in some other State should grant protection
and asylum. For such State need not grant these
things. The so-called right of asylum is nothing but
the competence of every State mentioned above, and
inferred from its territorial supremacy, to allow a pro-
secuted ahen to enter, and to remain on, its territory
under its protection, and thereby to grant an asylum
to him. Such fugitive ahen enjoys the hospitality of
the State which grants him asylum ; but it might be
necessary to place him under surveillance, or even to
intern him at some place, in the interest of the State
which is prosecuting him. For it is the duty of every
State to prevent individuals living on its territory from
endangering the safety of another State. And if a
State grants asylum to a prosecuted ahen, this duty
becomes of special importance.
VII
POSITION OP ALIENS AFTER RECEPTION ^
Vattel, i. § 213, ii. §§ 101-115— HaU, §§ 63 and 87— Westlake, i. pp. 218-219,
327-330— Lawrence, §§ 97-98— PhilUmore, i. §§ 332-339— Twiss, i. § 163
—Taylor, §§ 173, 187, 201-203— Walker, § 19— Wharton, ii. §§ 201-205
— Wheaton, § 77-82— Moore, iv. §§ 534-549— Hershey, Nos. 237-249-
Bluntschli, §§ 385-393— Hartmann, §§ 84-85— HefFter, § 62— Stoerk in
HoUzendorff, ii. pp. 637-650— Gareis, § 57— Liszt, § 25— Ullmann, §§ 113-
115— Bonfils, Nos. 447-454— Despagnet, Nos. 339-343— Rivier, i.' pp.
309-311— Calvo, ii. §§ 701-706— Martens, ii. § 46— Gaston de Leval,
De la Protection des Nationaua A I'J^tranger (1907) — Wheeler in A.J.,
iii. (1909), pp. 869-884 — Proceedingt of the American Society of Inter-
national Law, V. (1911), pp. 32-66, 150-225— Borohard, §§ 6-8, 14-25,
34-46, 133-136, and in A.J., vii. (1913), pp. 497-520.
§ 317. With his entrance into a State, an ahen, unless
' Every student desiring informa- property abroad must study the
tion on a special point arising out of excellent and standard work of
the position of aliens after reception Borohard, The Diplomatic Protection
or concerning citizens and their of Citizens Abroad (1919).
492
INDIVIDUALS
Aliens he belongs to the class of those who enjoy so-called
to Terri- exterritoriality, falls at once under the territorial supre-
premaoy.' ^^'^J ^f that State, although he remains at the same
time under the personal supremacy of his home State,
He is therefore under the juxisdiction of the State in
which he stays, and is responsible to it for aU acts he
commits on its territory. He is further subjected to
all administrative arrangements made by it which
concern the very locaUty where the aUen is. If in con-
sequence of a pubHc calamity, such as the outbreak of
a fire or an infectious disease, certain administrative
restrictions are enforced, they can be enforced against
all aliens, as well as against citizens. But apart from
jurisdiction, and mere local administrative arrange-
ments, which concern all ahens ahke, a distinction
must be made between such ahens as are merely travel-
ling, and stay, therefore, only temporarily on the terri-
tory, and such as take up their residence there either
permanently or for some length of time. A State has
wider power over ahens of the latter kind ; it can make
them pay rates and taxes, and can even compel them
in case of need, and under the same conditions as
citizens, to serve in the local pohce and the local fire
brigade for the purpose of maintaining pubhc order
and safety. On the other hand, an aUen does not
fall under the personal supremacy of the local State;
therefore he cannot be made to serve ^ in its army or
navy, and cannot, Uke a citizen, be treated according
to discretion.^
It must be emphasised that an ahen is responsible
to the local State for all illegal acts which he commits
while the territory concerned is during war temporarily
occupied by the enemy. An illustrative case is that of
* See, however, above, § 127, con- * As regards religions disabilities
oerning the attitude of Great Britain o£ foreigners, see Henriques in the
with regard to aliens in British Law Magazine and Seview, xxxix.
colonies. (1914), pp. 320-326.
POSITION OF ALIENS AFTER EECEPTION 493
De Jager v. The Attorney-General for Natal?- De Jager
•was a burgher of the South African RepubHc, but a
settled resident in Natal when the South African War
broke out. In October 1899 the British forces evacuated
that part of Natal in which Waschbank, where he lived,
is situated, and it was occupied by the Boer forces for
some six months. He joined them, and served in
different capacities until March 1900, when he went to
the Transvaal, and took no further part in the war.
He was tried in March 1901, and convicted of high
treason, and sentenced to five years' imprisonment and
a fine of £5000, or, f aihng payment thereof, to a further
three years.
§ 318. The rule that aliens fall under the territorial Aliens in
supremacy of the State they are in finds an exception coun™
in Turkey, and, further, in such other Eastern States, *"^^-
hke China, as are, in consequence of their deficient
civihsation, only for some parts members of the Family
of Nations. Ahens who are subjects of Christian States
and enter into the territory of such Eastern States,
remain wholly under the jurisdiction ^ of their home
State. This exceptional condition of things was based,
as regards Turkey, on custom and treaties which are
called Capitulations,^ but as regards other Eastern States
rests almost entirely on treaties only.^ Jurisdiction over
ahens in these countries is exercised by the consuls of
^ [1907] A.C. 326. See Baty in * See Twiss, i. § 163, who enume-
the Law Magazine and Review, rates many of these treaties. See
xxxiii. (1908), pp. 214-218, who also Phillimore, i. §§ 336-339 ; Liszt,
disapproves of the conviction of § 15, iv. ; Hall, Foreign Powers
De Jager. and Jurisdiction, §§ 59-91 ; Scott,
' See below, § 440. S^« ,-^"";^ affecting Foreigners in
Egypt as the Result of the Cwpitida-
' During the World War Turkey tions (1907) ; P61issi6 du Rausas,
denounced the Capitulations ; pro- Le Regime des OapitiUationa dans
tests were at once made against this I'Fmpire Ottoman (2nd ed. 1910) ;
denunciation, and by the Treaty of Tchou, Le Regime des Oapitvla-
Peaoe Turkey will be called upon to tions en Ohine (1915) ; Borohard,
accept a scheme of judicial reform § 201-205 ; Overboek, Die Kapitida-
designed to replace the Capitulations. tionen des Osmamischen Reichei
(See above, § 102.) (1917).
494
INDIVIDUALS
their home States, which have enacted special Municipal
Laws for that purpose. Thus, Great Britain has enacted
so-called Foreign Jurisdiction Acts at several times,
which are now all consohdated in the Foreign Jurisdiction
Act of 1890.1 It must be specially mentioned that
Japan has since 1899 ceased to belong to the Eastern
States in which ahens are exempt from local jurisdiction.
Aliens § 319. Although aUcus fall at once under the terri-
Proteo- torial supremacy of the State they enter, they remain,
thei°^ nevertheless, under the protection of their home State.
Home By a Universally recognised customary rule of the Law
of Nations every State holds a right of protection ^
over its citizens abroad, to which corresponds the duty
of every State to treat foreigners on its territory with a
certain consideration which wiU be discussed below,
§§ 320-322. The question here is only when and how
this right of protection can be exercised.^ Now there
is certainly, as far as the Law of Nations is concerned,
no duty incumbent upon a State to exercise its protection
over its citizens abroad. The matter is absolutely in the
discretion of every State, and no citizen abroad has by
International Law a right to demand protection from his
home State, although he may have such a right by Muni-
cipal Law. Often for pohtical reasons States have in
certain cases refused to exercise their right of protection
over citizens abroad. Be that as it may, every State can
exercise this right when one of its suT)jects is wronged
abroad in his person or property, either by the State itself
on whose territory such person or property is for the time
being, or by the officials or the citizens of such State,
1 53 & 54 Viot. 0. 37. See (§ 87) and others deduce this in-
Piggott, Exterritoricdity. The Law dubitable right from the 'funda-
relating to OonsiUar Jurisdiction, eto. mental ' right of self-preservation.
(1907); see also the Foreign Jurisdio- Borohard, § 135, accepts my view
tion Act, 1913 (3 & 4 Geo. v. o. 16). as correct.
^ This right has, I believe, grown
up in furtherance of intercourse be- ' See Moore, vi. §§ 979-997, and
tween the members of the Family Wheelerin.4..A., iii. (1909), pp. 869-
of Nations (see above, § 142) ; Hall 884.
POSITION OF ALIENS AFTER RECEPTION 495
if it does not interfere for the purpose of making good
the wrong done.^ And this right can be exercised
in several ways. Thus, a State whose subjects
are wronged abroad can diplomatically insist upon
the wrongdoers being punished according to the
law of the land and upon damages, if necessary, being
paid to its injured subjects. It can, secondly, exercise
retorsion and reprisals for the purjpose of making the
other State comply with its demands. It can, further,
exercise intervention, and it can even go to war when
necessary. And there are other means besides those
mentioned. It is, however, quite impossible to lay down
hard and fast niles as regards the question in which way,
and how far in each case, the right of protection ought
to be exercised. Everything depends upon the merits
of the individual case, and must be left to the discretion
of the State concerned. The latter will have to take
into consideration whether the wronged aUen was only
travelling through or had settled down in the country,
whether his behaviour had been provocative or not,
how far the foreign Government identified itself with
the acts of its ofl&cials or subjects, and the Uke.
§ 320. In consequence of the right of protection over Proteo-
its subjects abroad which every State enjoys, and the afforded ^
corresponding duty of every State to treat aliens on its p^^^^^
territory with a certain consideration, an ahen, pro- and Pro-
vided he owns some nationality, cannot be out- Aliens"
lawed in foreign coimtries, but must be afforded pro-
tection for his person and property. The home State
of the alien has, by its right of protection, a claim upon
such State as allows him to enter its territory that such
' Concerning the responsibility of abroad is discussed in detail by
a State for its own internationally Hall, § 87, Westlake, i. pp. 327-337
injurious acts and those of its organs and Gaston de Leval, op. cit. Con-
and other oflScials and its subjects, eerning the right of protection of a
see above, §§ 151-167, and Anzilotti State over its citizens with regard to
in B.O., xiii. (1906), pp. S and 285. public debts of foreign States, see
The right of protection over citizens above, §§ 135 (6) and 155.
496
INDIVIDUALS
protection shall be afEorded, and it is no excuse that
such State does not provide any protection whatever
for its own subjects. In consequence thereof, every
State is by the Law of Nations compelled to grant to
aliens at least equaUty before the law with its citizens,
as far as safety of person and property is concerned.
An alien must in particular not be wronged in person or
property by the officials and courts of a State. Thus,
the police must not arrest him without just cause,
custom-house officials must treat him civiUy, courts of
justice must treat him justly, and in accordance with
the law. Corrupt administration of the law against
natives is no excuse for the same against aKens, and no
Government can cloak itself with the judgment of
corrupt judges.
How far § 321. Apart from protection of person and property,
can^be 6 Very State can treat ahens according to discretion,
treated except iu SO far as its discretion is restricted through
to Dis- international treaties. Thus, a State can exclude ahens
from certain professions and trades ; it can exclude
them from holding real property ; it can, as Great
Britain did in former times ^ and again during the World
War and since, compel them to have their names regis-
tered for the purpose of keeping them under control,^
and the like. Before the World War there was a tendency
within all the States which are members of the Family
of Nations to treat admitted aliens more and more on
the same footing as citizens, pohtical rights and duties,
of course, excepted. Thus, for instance, with the excep-
tion that an ahen could not be sole or part owner of a
* See anAotforthe Registration of or great emergency has arisen, make
Aliens, 1836 (6 & 7 William iv. o 11). an Order in Council (/) requiring
' The Aliens Kestriotion Act, 1914 aliens to comply with suoh provisions
(4 & 5 Geo. V. 0. 12) provides (§ 1 as to registration, change of abode,
(1)) that His Majesty may, at any travelling or otherwise, as may be
time when a state of war exists made by the Order. See also the
between His Majesty and any foreign Aliens Restriction (Amendment)
Power, or when it appears that an Act, 1919 (9 & 10 Geo. v. o. 92), § 1,
oooasion of imminent national danger and the Aliens Order, 1920.
POSITION OF ALIENS AFTER BECEPTION 497
British ship, ahens who had taken up their domicile in
this country were for all practical purposes treated by
the law of the land on the same footing as British sub-
jects. But this is no longer the case. For example, the
AHens Restriction (Amendmesnt) Act, 1919,^ provides,
among other disabilities, that no alien is to hold a
pilotage certificate for any pilotage district in the
United Kingdom,^ or act as master, chief officer, or
chief engineer of a British merchant ship registered in
the United Kingdom, or as skipper or second hand of
a British fishing boat,^ or receive an appointment to
the Civil Service. Further restrictions are imposed by
this Act on former enemy aliens.
§ 322. Since a State holds only territorial and not Departure
personal supremacy over an ahen within its boundaries, p^ign*
it can never, under any circumstances, prevent him from t!oii°*ry.
leaving its territory, provided he has fulfilled his local
obhgations, such as payment of rates and taxes, of fines,
of private debts, and the Uke. And an alien leaving a
State can take all his property away with him, and a
tax for leaving the country, or tax upon the property
he takes away with him,^ cannot be levied. And it
must be specially mentioned that since the beginning
of the nineteenth century the so-called droit d'avbaine
belongs to the past ; this is the name of the right of a
State, which was formerly frequently exercised, to
confiscate the whole estate of an alien deceased on its
territory.* But if a State levies estate duties in the case
of a citizen dying on its territory, as Great 'Britain does
according to the Finance Act ^ of 1894, such duties can
hkewise be levied in case of an ahen dying on its territory.
' §§ 4-12. de retraite, or droit de d^raction or
^ These general prohibitions are jus detractus, according to which the
subject to certain exceptions. estate of a deceased alien was not
' So-called gabella emigrationis. confiscated, but a tax was levied
' See details in Wheaton, § 82. upon its removal by the foreign
The droit d'auhaine was likewise heir.
named jus aibinagii. A mitigation ' 57 & 58 Vict. o. 30. Estate
of the droit d'mibmne was the droit duty is levied in Great Britain in the
VOL. I. 2 I
498 INDIVIDUALS
VIII
EXPULSION OP ALIENS
Hall, § 63— Westlake, i. p. 217— Phillimore, i. § 364— Halleok, 1. pp. 493-494
—Taylor, § 186— Walker, § 19— Wharton, li. § 206— Moore, iv. §§ 550-
559— Hershey, No. 247— Bluntsohli, §§ 383-384— Stoerk in HoU'U.ndorff,
ii. pp. 644-650— UUmann, § 115— Boneis, No. 442— Deepagnet, Nos.
336-337— Pradier-Fod^r^, iii. Nos. 1857-1859— Rivier, i. pp. 311-314—
Nys, ii. pp. 284-289— Calvo, vi. §§ 119-125— Fiore, Code, Nos. 257-264—
Martens, i. § 79 — Bleteau, De I'Asile et de VExpvZsion (1886) — Berc,
De r Expulsion dea Strangers (1888) — IT^raud-Griraud, Droit d'Expvlsion
des Arangers (1889) — Langhard, Das Recht der politiechen Fremdenaua-
weisung (1891) — Overbeek, Niederlassungs/reiheit und Ausweiswngarecht
(1906)— Martini, L'Expvlaion des grangers (1909)— Borohard, §§ 27-32
— RoUn-Jaeqitemyns in -B.7., xx. (1888), pp. 499 and 615 — Proceedingi
of the American Society of International Law (1911), pp. 119-150.
Com- § 323. Just as a State is competent to refuse admit-
to'expei ^^ance to an alien, so, in conformity with its territorial
Aliens, supremacy, it is competent to expel at any moment
an alien who has been admitted into its territory. And
it matters not whether that individual is only on a
temporary visit, or has settled down for professional
or business purposes on its territory, having taken his
domicile thereon. Such States, of course, as have a
high appreciation of individual hberty and abhor arbi-
trary powers of Government wiU not readily expel ahens.
Thus, the British Government had, until December
1919, no power to expel even the most dangerous ahen
without the recommendation of a coiirt, or without an
Act of ParHament making provision for such expulsion,
except during war or on an occasion of imminent national
danger or great emergency.^ And in Switzerland, Article
case also of such aliens dying abroad Sechte (1912).
as leave movable property in the
United Kingdom without having ^ Aliens Restriction Act, 1914.
ever been resident there. As far as But the Aliens Restriction (Amend-
the Law of Nations is concerned, it ment) Act, 1919, authorises the
is doubtful whether Great Britain is making of an Order in Council for
competent to claim estate duties in the deportation of any aliens during
such cases. On the question of estate the ensuing year and contains special
duties in general, see Meynen, Die provisions regarding the deportation
ErhschOjftssteuer im intemationalen of former enemy aliens.
EXPULSION OF ALIENS 499
70 of the Constitution empowers the Government to
expel such aliens only as endanger the internal and
external safety of the land. But many States are in no
way prevented by their Municipal Law from expeUing
ahens according to discretion, and examples of arbitrary
expulsion of ahens, who had made themselves objec-
tionable to the respective Governments, are numerous.
On the other hand, it cannot be denied that, especi-
ally in the case of expulsion of an ahen who has been
residing within the expelling State for some length of
time, and has established a business there, the home
State of the expelled individual is, by its right of pro-
tection over citizens abroad, justified in making diplo-
matic representations^ to the expelling State, and asking
for the reasons for the expulsion. But as, in strict law,
a State can expel even domiciled aliens without so much
as giving the reasons, the refusal of the expeUing State
to supply the reasons for expulsion to the home State
of the expelled alien does not constitute an illegal,
but only a very imiriendly act. And there is no doubt
that every expulsion of an ahen without just catise is,
in spite of its international legaHty, an unfriendly act,
which can rightly be met with retorsion.
§ 324. On account of the fact that retorsion might Just
be justified, the question is of importance what just Ex^iision
causes of expulsion of ahens there are. As International °^ ^I'^'is-
Law gives no detailed rules regarding expulsion, every-
thing is left to the discretion of the single States, and
depends upon the merits of the individual case. Theory
and practice correctly make a distinction between ex-
pulsion in time of war and in time of peace. A beUi-
gerent may consider it convenient to expel all enemy
subjects residing, or temporarily staying, within his
territory. And, although such a measure may be very
^ Concerning diplomatic claims for account of unjustified expulsions, see
damages and arbitral awards on Borchard, § 31.
500
INDIVrDUALS
hard and cruel, the opinion is general that such expul-
sion is justifiable.^ As regards expulsion in time of
peace, on the other hand, the opinions of writers, as
well as of States, naturally differ much. A State which
expels an alien will hardly admit not having had a just
cause. Some States, as Belgium ^ since 1885, possess
Municipal Laws determining just causes for the expul-
sion of ahens, and their discretion concerning expulsion
is, of course, more or less restricted thereby. But many
States do not possess such laws, so that their discretion
as to what is a just cause of expulsion is unfettered.
The Institute of International Law at its meeting at
Geneva in 1892 adopted a body of forty-one articles
concerning the admittance and expulsion of ahens, and
in Article 28 thereof enumerated nine just causes for
expulsion in time of peace.* I doubt whether the States
will ever come to an agreement about just causes of
expulsion. The fact cannot be denied that an ahen
is more or less a guest in the foreign land, and the
question under what conditions a guest makes himseM
objectionable to his host cannot be answered once for
all by the estabhshment of a body of rules. So much is
certain, that with the gradual disappearance of despotic
views in the different States, and with the advance of
true constitutionalism, guaranteeing individual hberty
and freedom of opinion and speech, expulsion of ahens,
especially for pohtical reasons, will become less frequent.
Expulsion will, however, never totally disappear, because
it may well be justified. Thus, for example, Prussia,
after the annexation of the formerly Free Town of
Frankfort-on-the-Main, was certainly justified in expell-
' Thus, in 1870, during the Franco- " See details in Rivier, i. p. 312.
German War, the Frenoh expelled all
Germans from France, and the former ' See Annuaire, xiij p. 223.
South African Republic expelled in Many of these causes, as oonvic-
1899, during the Boer War, almost tion for crimes, for instance, are
all British subjects. Se^ below, certainly just causes, but others are
vol. ii. § 100. doubtful.
EXPULSION OF ALIENS 501
ing those individuals who, for the purpose of avoiding
military service in the Prussian Army, had by natural-
isation become Swiss citizens without giving up their
residence at Frankfort.
' § 325. Expulsion is, in theory at least, not a punish- Expui-
ment, but an administrative measure consisting in anSted.^
order of the Government directing a foreigner to leave
the country. Expulsion must therefore be effected
with as much forbearance and indulgence as the circum-
stances and conditions of the case allow and demand,
especially when compulsion is meted out to a domi-
ciled ahen. And the home State of the expelled alien,
by its right of protection over its citizens abroad, may
well insist upon such forbearance and indulgence. But
this is vahd as regards the first expulsion only. Should
the expelled ahen refuse to leave the territory volun-
tarily or, after having left, return without authorisa-
tion, he may be arrested, punished, and forcibly brought
to the frontier.
§ 326. In many Continental States destitute ahens, Eeoon-
foreign vagabonds, suspicious aliens without papers of oontia" '°
legitimation, ahen criminals who have served their distino-
pumshment, and the uke, are, without any formahties, Expui-
arrested by the pohce and reconducted to the frontier. "°"'
There is no doubt that the competence to carry out such
reconduction, which is often called droit de renvoi, is an
inference from the territorial supremacy of every State,
for there is no reason whatever why a State should not
get rid of such undesirable ahens as speedily as possible.
But although such reconduction is materially not much
different from expulsion, it nevertheless differs much
from this in form, since expulsion is an order to leave
the country, whereas reconduction is forcible conveying
away of foreigners.^ The home State of such recon-
• Rivier, i. p. 308, correctly dia- expulsion, but Phillimore, i. § 364,
tinguishes between reconduction and seems to confound them.
502 rNDIVIDUALS
ducted aliens has the duty to receive them, since, as
will be remembered,! a State cannot refuse to receive
such of its subjects as are expelled from abroad.
Difficulties arise, however, sometimes concerning the
reconduction of such ahen individuals as have lost their
nationahty through long-continued absence ^ from home
without having acquired another nationahty abroad.
Such cases are a further example of the fact that the
very existence of Stateless individuals is a blemish in
Municipal, as well as International Law.^
IX
EXTRADITION
Hall, §§ 13 and 63— Westlake, i. pp. 252-261— Lawrence, §§ 110-111— PhilU-
more, i. §§ 365-389d— Twiss, i. § 236— Halleok, i. pp. 250-256— Taylor,
§§ 205-211— Walker, § 19— Hershey, Nos. 250-252— Wharton, ii. §§ 268-
282— Wheaton, §§ 115-121— Moore, iv. §§ 579-622— Bluntsohli, §§ 394-
401— Hartmann, § 89— Heffter, § 63— Lammasoh in BoUzendorf, iii.
pp. 454-566— Liszt, § 33— UUmann, §§ 127-131— Bonfils, Nos. 455-481
— Despagnet, Nos. 276-303 — Pradier-Fod6r6, iii. Nos. 1860-1893—
Mirignhao, ii. pp. 732-778— Rivier, i. pp. 348-357— Nys, ii. pp. 290-303—
Calvo, ii. §§949-1071— Kore, Code, Nos. 589-592— Martens, ii. §§ 91-98-
Spear, The Law of Extraditim (1879)— Lammasoh, AiidieferungspflkU
und Asylrecht (1887) — Martitz, Internationale RechtehUfe in Strafsaclien,
2 vols. (1888 and 1897)— Bernard, Traits theoriqueet pratique del' Extradi-
tion, 2 vols. (2nd ed. 1890)— Moore, Treatise on Extradition (1891)—
Hawley, The Law of International Extraditicm (1893) — Beauchet, Traiti
de I' Extradition (1899)— Clarke, The Law of Extradition (4th ed. 1903)—
Biron and Chalmers, The Law and Practice of Extradition (1903)—
Piggott, Extradition (1910)— Saint-Aufin, L' Extradition, 2 vols. (1913)
— Lammasch in R.Q., iii. (1896), pp. 5-14— Diena in R.Q., xii. (1905),
pp. 516-544- Devogel in iJ./.,,2nd Ser. xiv. (1912), pp. 187-193—
Struyoken and others in Reports of the International Law Astociatum,
xxvii. (1912), pp. 139-161— Hyde in A.J., viii. (1914), pp. 487-514-
See the French, German, and Italian literature oonoerning extradition
quoted by Fauohille in Bonfils, No. 455.
' See above, § 294. treaties or in their treaties of
1 s-e above S S02 m commerce, friendship, and the Uke,
bee above, S dUZ (6). stipulated proper treatment for each
' It ought to be mentioned that other's destitute subjects on each
many States have, either by special other's territory.
EXTRADITION 503
§ 327. Extradition is the delivery of a prosecuted Extradi-
individual to the State on whose territory he has com- Lega"°
mitted a crime by the State on whose territory the ^"*y-
criminal is for the time stapng. Although Grotius ^
holds that every State has the duty either to punish,
or to surrender to the prosecuting State, such individuals
within its boundaries as have committed a crime abroad,
and although there is as regards the majority of such
cases an important interest of civihsed mankind that
this should be done, this rule of Grotius has never been
adopted by the States, and has, therefore, never become
a rule of the Law of Nations. On the contrary. States
have always upheld their competence to grant asylum
to foreign individuals as an inference from their terri-
torial supremacy, those cases, of course, excepted which
fall under stipulations of special extradition treaties, if
any. There is, therefore, no universal rule of customary
International Law in existence which commands^ extra-
dition.
§ 328. Since, however, modern civihsation categori- Extradi-
cally demands extradition of criminals as a rule, nmne- Treaties,
rous treaties have been concluded between the several ^"7
States, stipulating the cases in which extradition shall
take place. According to these treaties, individuals
prosecuted for the more important crimes, political
crimes excepted, are in fact always surrendered to the
prosecuting State, if not punished locally. But this
solution of the problem of extradition is a product of
the nineteenth century only. Before the eighteenth
century, extradition of ordinary criminals hardly ever
* ii. 0. 21, § 4. which exist between civilised com-
munities' (see p. 14). But nobody
'' Clarke, op. cit., pp. 1-15, tries has ever denied this, as far as the
to prove that a duty to extradite ordinary criminal is concerned. The
criminals does exist, but the result question is only whether an inter-
of all his labour is that he finds that national legcd duty exists to sur-
the refusal pf extradition is a ' serious render a criminal. And this legal
violation of the moral obligations duty States have always denied.
504
INDIVIDUALS
occurred, although many States used then frequently
to surrender to each other political fugitives, heretics,
and even emigrants, either in consequence of special
treaties stipulating the surrender of such individuals,
or voluntarily without such treaties. Matters began to
undergo a change in the eighteenth century, for then
treaties between neighbouring States frequently stipu-
lated extradition of ordinary criminals besides that
of political fugitives, conspirators, miUtary deserters,
and the hke. Vattel (h. § 76) is able to assert in 1758
that murderers, incendiaries, and thieves are regularly
surrendered by neighbouring States to each other. But
general treaties of extradition between aU the members
of the Family of Nations did not exist in the eighteenth
century, and there was hardly a necessity for such
general treaties, since traffic was not so developed as
nowadays, and fugitive criminals seldom succeeded in
reaching a foreign territory beyond that of a neighbour-
ing State. When, however, in the nineteenth century,
with the appearance of railways and transatlantic steam-
ships, transit began to develop immensely, criminals used
the opportunity to flee to distant foreign countries. It
was then, and in consequence of this, that the con-
viction was forced upon the States of civiUsed humanity
that it was in their common interest to surrender ordi-
nary criminals regularly to each other. General treaties
of extradition became, therefore, a necessity, and the
several States succeeded in concluding such treaties
with each other. There is no civihsed State in exist-
ence nowadays which has not concluded such treaties
with the majority of the other civilised States. And
the consequence is that, although no universal rule of
International Law commands it, extradition of crimiuals
between States is an estabhshed fact based on treaties.
The present condition of affairs is, however, very un-
satisfactory, since there are many hundreds of treaties
EXTRADITION 505
in existence which do not at all agree in their details.
What is required nowadays, and what will certainly
be reahsed in the near future, is a universal treaty of
extradition — one single treaty to which all the civihsed
States become parties.^
§ 329. Some States, however, were unwilhng to depend Municipal
entirely upon the discretion of their Governments as tionLaws.
regards the conclusion of extradition treaties and the
procedure in extradition cases. They have therefore
enacted special Municipal Laws, which enumerate those
crimes for which extradition shall be granted and asked
in return, and which at the same time regulate the
procedure in extradition cases. These Mmaicipal Laws ^
furnish the basis for the conclusionof extradition treaties.
The first in the field with such an extradition law was
Belgium in 1833, which remained, however, for far more
than a generation quite isolated. It was not until
1870 that England followed the example given by
Belgium. EngUsh public opinion was for many years
against extradition treaties at all, considering them as
a great danger to individual Uberty, and to the com-
petence of every State to grant asylum to pohtical
refugees. This country possessed, therefore, before
1870 a few extradition treaties only, and they were in
many points inadequate. But in 1870 the British
Government succeeded in getting ParUament to pass
the Extradition Act.^ This Act, which was amended
in 1873,4 in 1895,^ and in 1906,« has furnished the basis
for extradition treaties between Great Britain and forty-
' The Second Pan-American Con- * See Martitz, Internationale
ferenoe of 1902 produced a treaty of Rechiihil/e, i. pp. 747-818, where
extradition which was signed by the history of all these laws is
twelve States, namely, the United sketched and their text is printed.
States of America, Colombia, Costa ^ 33 & 34 Vict. c. 52.
Eioa, Chili, San Domingo, Ecuador, ^ 36 & 37 Vict. o. 60.
Salvador, Guatemala, Haiti, Hon- ' 58 & 59 Vict. c. 33. On the
duras, Mexico, and Nicaragua, but history of extradition in Great
this treaty has not been ratified ; Britain before the Extradition Act,
see the text in Annuaire de la Vie 1870, see Clarke, op. cji.,pp. 126-166.
iraematiowde (1908-1909), p. 461. ° 6 Bdw. vn. o. 15.
506
INDIVIDUALS
two other States.^ Luxemburg enacted an extradition
law in 1870, and Belgium a new law in 1874. Holland
enacted such a l3,w in 1875, Argentiaa in 1885, the Congo
Free State in 1886, Peru in 1888, Switzerland in 1892,
Norway in 1908, Brazil and Russia in 1911.2
Such States as possess no extradition laws, and whose
written constitution does not mention the matter, leave
it to their Governments to conclude extradition treaties
according to their discretion. And in. these countries
the Governments are competent to extradite an indi-
vidual, even if no extradition treaty exists,
objeot of § 330. Since extradition is the delivery of an in-
tion!^^" criminated individual to the State on whose territory
he has committed a crime by the State on whose terri-
tory he is for the time sta3dng, the object of extradition
can be any individual, whether he is a subject of the
prosecuting State, or of the State which is required to
extradite him, or of a third ^ State. Many States, how-
ever, as France and most other States of the European
continent, have adopted the principle of never extra-
diting one of their subjects to a foreign State, but them-
selves punishing their own subjects for grave crimes
committed abroad. Other States, as Great Britain
and the United States, have not adopted this principle,
and do extradite such of their subjects as have com-
mitted a grave crime abroad. Thus Great Britain
surrendered in 1879 to Austria, where he was convicted
and hanged,* one Tourville, a British subject, who,
1 The full text of these treaties ' Reg. v. Oanz, (1882) 9 Q.B.D.
is printed by Clarke, op. cit. , as well 93.
as Biron and Chalmers, op. cit. Not * This ease is all the more remark-
to he confounded with extradition able, as (see 24 & 25 Viot. o. 100,
of criminals to foreign States is § 9) the Criminal Law of England
extradition within the Britisli Em- extends over murder and man-
pire from one part of the British slaughter committed abroad by
dominions to another. This matter English subjects, and as, according
is regulated by the Fugitive Offenders to Article 3 of the Extradition
Act, 1881 (44 & 45 Viot. c. 69). Treaty of 1873 between England
^ See Devogel in B.I., 2nd Ser. and Austria-Hungary, the oontraot-
xiv. (1912), pp. 187-193. ing parties were in no ease under an
EXTRADITION 507
after having murdered his wife in the Tyrol, had fled
home to England. And it must be emphasised that
the object of extradition is an individual who has com-
mitted a crime abroad, whether or not he was during
the commission of the criminal act physically present
on the territory of the State where the crime was com-
mitted. Thus, in 1884, Great Britain surrendered one
Nilhns to Germany, who, by sending from Southampton
forged bills of exchange to a merchant in Germany as
payment for goods ordered, was considered to have
committed forgery, and to have obtained goods by
false pretences, in Germany.^
A conflict between International and Municipal Law
arises if a certain individual must be extradited accord-
ing to an extradition treaty, but cannot be extradited
according to the Municipal Law of the State from which
extradition is demanded. Thus in the case of Salvatore
Paladini,^ whose extradition was demanded by the
United States of America from the Itahan Government
in 1888 for having passed counterfeit money, Italian
Municipal Law, which prohibits the extradition of an
Itahan citizen, came into conflict with Article 1 of the
Extradition Treaty of 1868 between Italy and the
United States, which stipulates extradition of criminals
obligation to extradite their own Great Britain and foreign States
subjects. Although Great Britain is comprise a clause according to which
ready to extradite one of her own no party is compelled to extradite
subjectsfororimesoommittedabroad, nationals. It is thus left to the
she was formerly in some cases pre- discretion of the parties whether
vented from doing so because the they will extradite one of their own
extradition treaties concerned com- subjects or not. As late as 1906, the
prised a clause stipulating that extradition of a British subject had
nationals should not be extradited. to be refused to France because
Thus the extradition of Alfred Article 2 of the Anglo-French Ex-
Thomas Wilson, who had committed tradition Treaty of 1876 precluded
a theft in Zurich in 1877, and whose the surrender of nationals. How-
surrender was claimed by Switzer- ever, by a Convention of 1908 (Treaty
land, had to be refused, because the Ser. (1909), No. 34), Article 2 of the
Anglo-Swiss Treaty of 1874 com- Treaty of 1876 has been remodelled,
prised such a clause (see Beg. v. ' See Clarke, op. cit., pp. 177 and
WUsm, (1877) 3 Q.B.D. 42). To 262, who, however, disapproves of
avoid such a deplorable result, sub- this surrender. •
sequent extradition treaties between ' See Moore, iv. § 594, pp. 290-297.
508 INDIVIDUALS
without exempting nationals. For this reason Italy
refused to extradite Paladini. It is noteworthy that the
United States, although they do not any longer press
for extradition of Itahan subjects who, after having
committed a crime in the United States, have returned
to Italy, nevertheless consider themselves bound by
the above-mentioned treaty of 1868 to extradite to
Italy such American subjects as have committed a crime
in Italy. Therefore, when in 1910 the ItaUan Govern-
ment demanded from the United States extradition of
one Porter Charlton,^ an American citizen, for haviug
committed a murder in Italy, extradition was granted
by the United States Government, and this action was
upheld by the Supreme Court of the United States to
which Charlton appealed.^
Extra- § 331. Unless a State is restricted by an extradition
Chrimes. law, it cau grant extradition for any crime it thinks
fit. And unless a State is bound by an extradition
treaty, it can refuse extradition for any crime. Such
States as possess extradition laws frame their extra-
dition treaties conformably therewith, and specify in
those treaties aU those crimes for which they are willing
to grant extradition. And no person is to be extradited
whose deed is not a crime according to the Criminal
Law of the State which is asked to extradite, as well as
of the State which demands extradition. As regards
Great Britain, the following are extraditable crimes
according to the Extradition Act of 1870 : murder
and manslaughter ; counterfeiting and uttering coun-
terfeit money ; forgery and uttering what is forged ;
embezzlement and larceny ; obtaining goods or money
by false pretences ; crimes by bankrupts against bank-
ruptcy laws ; fraud by a bailee, banker, agent, factor,
trustee, or by a director, or member, or pubhc officer
» See A.J., V. (1911), pp. 182-192 ; "^ Oharltcm v. Kelly, 229 U.S. 447.
vii. (1913), pp. 580-582, 637-653, See below, § 547 n.
EXTRADITION 509
of any company ; rape ; abduction ; child stealing ;
burglary and housebreaking ; arson ; robbery with
violence ; threats with intent to extort ; piracy by
the Law of Nations ; sinking or destroying a vessel at
sea ; assaults on board ship on the high seas with
intent to destroy life or to do grievous bodily harm ;
revolt or conspiracy against the authority of the master
on board a ship on the high seas. The Extradition
Acts of 1873 and 1906 added the foUpwing crimes to
the hst : kidnapping, false imprisonment, perjury,
subornation of perjury, and bribery.
PoHtical criminals are, as a rule, not extradited,^
and according to many extraidition treaties, military
deserters and persons who have committed offences
against religion are Ukewise excluded from extradition.
§ 332. Extradition is granted only if asked for,^ and Effeotua-
after the formaUties have taken place which are stipu- oonduSon
lated in the treaties of extradition and the extradition °! ?^*ra-
dition.
laws, if any. It is effected through the handing over
of the criminal by the poKce of the extraditing State to
the police of the prosecuting State. But it must be
emphasised that, according to most extradition treaties,
it is a condition that the extradited individual shall
be tried and punished for those crimes exclusively for
which his extradition has been asked and granted, or for
those, at least, which the extradition treaty concerned
enumerates.^ If, nevertheless, an extradited individual
is tried and punished for another crime, the extraditing
State has a right of intervention.*
An important question is whether, in case a criminal,
' See below, §§ 333-340. schriflfwr intemationalea Recht, xvlii.
' Many treaties make it a con- (1908), pp. 425-430.
dition of extradition that reciprocity * It ought to be mentioned that
is granted. On the so-oalled reoi- the Institute of International Law in
prooity clause, see Mettgenberg in 1880, at its meeting in Oxford (see
the Archiv fwr offentliches Becht, Annuaire, v. p. 127), adopted a body
XXV. (1910), pp. 1-148. of, twenty-six rules oonoenling extra-
' See Mettgenberg in the Zeit- dition.
510
INDIVIDUALS
who has succeeded in escaping into the territory of
another State, is erroneously handed over, without the
formahties of extradition having been compUed with,
by the poUce of the local State to the poHce of the
prosecuting State, such local State can demand that the
prosecuting State shall send the criminal back, and ask
for his formal extradition. This question was decided
in the negative in February 1911 by the Court of Arbi-
tration at the Hague in the case of France v. Great
Britain, concerning Savarkar. This British-Indian
subject, who was prosecuted for high treason and
abetment of murder, and was being transported in the
P. and 0. boat Morea to India for the purpose of stand-
ing his trial there, escaped to the shore on October 25,
1910, while the vessel was in the harbour of Marseilles.
He was, however, seized by a French policeman, who,
erroneously and without further formahties, recon-
ducted him to the Morea with the assistance of indi-
viduals from the vessel who had raised a hue and cry.
Since Savarkar was prima facie a pohtical criminal,
France demanded that England should give him up,
and should request his extradition in a formal way ;
but England refused to comply with this demand, and
the parties, therefore, agreed to have the conflict decided
by the Court of Arbitration at the Hague. The award,
while admitting that an irregularity had been committed
by the reconduction of Savarkar to the British vessel,
decided, correctly, I beheve, in favour of Great Britain,
asserting that there was no rule of International Law
imposing, in circumstances such as those which have
been set out above, any obhgation on the Power which
has a prisoner in its custody, to restore him on account
of a mistake committed by the foreign agent who
delivered him up to that Power.^ It should be men-
^ See Hamelin, L'Affaire Savar- Jurisprudence, de Doctrine, et de
ha/r (Extrait du Becueil gindral de LigikcUion colonicdee, 1911), who
NON-EXTRADITION OF POLITICAL CRIMINALS 511
tioned that the French Government had been previously
informed of the fact that Savarkar would be a prisoner
on board the Morea while she was calhng at Marseilles,
and had agreed to this.
Somewhat similar to the case of Savarkar is the re-
markable case of Lamirande which occurred in 1866.^
He was a French subject, and was arrested in Canada
under an extradition warrant on a charge of forgery.
He apphed to a superior tribunal on the ground that his
surrender was not justified by the Extradition Treaty
with France, but was erroneously surrendered to France
before his appKcation was heard. The judge and the
British law officers took the view that the surrender of
Lamirande was not justified by the Extradition Treaty,
and the British Government asked the French Govern-
ment to remit him to Canada, not indeed on the ground
of any international obhgation, but as a matter of comity.
However, the French Government refused to accede
to this request, contending that the error through which
Lamirande had been surrendered did not afford any
ground for removing him from the control of the French
courts.
X
PRINCIPLE OP NON-EXTRADITION OF POLITICAL
CRIMINALS
Westlake, i. pp. 256-258— Lawrence, § 111— Taylor, § 212— Hershey, Noa.
253-255— Wharton, ii. § 272— Moore, iv. § 604— Bluntsohli, § 396—
Hartmann, § 89 — Lammasch in Holtzendorff, iii. pp. 485-510 — Liszt,
§ 33— Ullmann, § 129— Rivier, i. pp. 351-357— Nys, ii. pp. 300-303—
— Calvo, ii. §§ 1034-1036— Martens, ii. § 96— BoniilB, Nos. 466-467—
defends the French view. The Robin in R.O., xviii. (1911), pp.
award of the Court of Arbitration 303-352; Hamel in R.I., 2nd Ser.
has been severely criticised by Baty xiii. (1911), pp. 370-403.
in the Law Magazine and Review,
xxxvi. (1911), pp. 326-330 ; Kohler ^ The documents relating to this
in Z.V., V. (1911), pp. 202-211; case are printed on pp. 28-29 of the
Strupp, Zwei praJctische FaZle aus British counter-case in the Savarkar
dem Volkerrecht (1911), pp. 12-26; Arbitration.
512 INDIVrDUALS
Pradier-Fod6r6, iii. Nos. 1871-1873 — M^rignhac, ii. pp. 754-771 —
Soldan, L' Extradition des OrimineU politiquea (1882) — Martitz, Inler-
natianale RedUshUfe in Strafsachen, voL ii. (1897), pp. 134-707 —
Lammasoh, Audieferungapflicht und Atylrecht (1887), pp. 203-355 —
Grivaz, Nature el Effett du Principe de FAsile politique (1895)— Piggott,
Extradition (1910), pp. 42-60 — Teictunaim, Homnng, Martens, and
Saripolos in R.I., xi. (1879), pp. 475-52e— Scott in A.J., iii. (1909),
pp. 459-461— Hyde in A.J., viiu (1914), pp. 489-495.
How § 333. Before the French Revolution ^ the term
t^tion ' political crime ' was unknown both in the theory and
rai^^^ practice of the Law of Nations, and the principle of
jiaisbe- non-extradition of political criminals was likewise non-
Knie. ^ existent. On the contrary, whereas extradition of
ordinary criminals was, before the eighteenth century
at least, hardly ever stipulated, treaties very often
stipulated the extradition of individuals who had com-
mitted such deeds as are nowadays termed ' pohtical
crimes,' and such individuals were frequently extra-
dited, even when no treaty stipulated it.^ Moreover,
writers in the sixteenth and seventeenth centuries did
not at all object to such a practice on the part of the
States ; on the contrary, they frequently approved of
it.^ It was indirectly due to the French Revolution
that matters gradually underwent a change, since this
event was the starting-point for the revolt in the nine-
teenth century against despotism and absolutism through-
out the western part of the European continent. It was
then that the term ' political crime ' arose, and Article
120 of the French Constitution of 1793 granted asylum
to foreigners exiled from their home country ' for the
cause of Kberty.' On the other hand, the French
emigrants, who had fled from France to escape the
Reign of Terror, found an asylum in foreign States.
However, the modern principle of non-extradition of
* I foUow in this section for the » list of important extraditions of
most part the summary of the facte political criminals which took place
given by Martitz, op. eil., ii. pp. between 1648 Euid 1789.
134-184.
' Martitz, op. cii., ii. p. 177, gives ' So Grotins, ii. c. 21, ? 5, No. 5.
NON-EXTRADITION OF POLITICAL CRIMINALS 513
political criminals did not even then conquer the world.
Until 1830 pohtical criminals were frequently extradited.
But public opinion in free countries began gradually to
revolt against such extradition, and Great Britain was
its first opponent. The fact that several poUtical
fugitives were surrendered by the Governor of Gibraltar
to Spain created a storm of indignation in Parhament
in 1815, where Sir James Mackintosh proclaimed the
principle that no nation ought to refuse asylum to
pohtical fugitives. And in 1816 Lord Castlereagh
declared that there could be no greater abuse of the law
than by allowing it to be the instrument of inflicting
punishment on foreigners who had committed pohtical
crimes only. The second in the field was Switzerland,
the asylimi for many pohtical fugitives from neigh-
bouring countries, when, after the final defeat of
Napoleon, the reactionary Continental monarchs refused
the introduction of constitutional reforms which were
demanded by their peoples. And although, in 1823,
Switzerland was forced by threats of the reactionary
leading Powers of the Holy Alhance to restrict some-
what the asylum afforded by her to individuals who had
taken part in the unsuccessful pohtical revolts in Naples
and Piedmont, the principle of non-extradition went
on fighting its way. The question as to that asylum
was discussed with much passion in the press of Europe ;
and, although the principle of non-extradition was far
from becoming universally recognised, that discussion
indirectly fostered its growth. A practical proof thereof
is that in 1830 even Austria and Prussia, two of the
reactionary Powers of that time, refused Russia's
demand for extradition of fugitives who had taken part
in the Pohsh Revolution of that year. And another
proof thereof is that at about the same time, in 1829,
a celebrated dissertation ^ by a Dutch jurist made its
' H. Prov6 Kluit, De Deditione Profugorum.
VOL. L 2K
514
INDIVIDUALS
appearance, in which the principle of non-extradition
of pohtical criminals was for the first time defended
with juristic arguments, and on a juristic basis.
On the other hand, a reaction set in in 1833, when
Austria, Prussia, and Russia concluded treaties which
remained in force for a generation, and which stipulated
that thenceforth individuals who had committed crimes
of high treason and lese-majeste, or had conspired against
the safety of the throne and the legitimate Government,
or had taken part in a revolt, should be surrendered
to the State concerned. The same year, however, is
epoch-making in favour of the principle of non-extra-
dition of political criminals, for in 1833 Belgium enacted
her celebrated extradition law, the first of its kind,
being the very first Municipal Law which expressly
interdicted the extradition of foreign pohtical criminals.
As Belgiimi, which had seceded from the Netherlands
in 1830 and became recognised and neutrahsed by the
Powers in 1831, owed her very existence to revolt, she
felt the duty of making it a principle of her Municipal
Law to grant asylum to foreign political fugitives, a
principle which was for the first time put into practice
in the treaty of extradition concluded in 1834 between
Belgium and France. The latter, which to the present
day has no municipal extradition law, has nevertheless
henceforth always in her extradition treaties with other
Powers stipulated the principle of non-extradition of
pohtical criminals. And the other Powers followed
gradually. Even Russia had to give way, and since
1867 this principle is to be foimd in all extradition
treaties between Russia and other Powers, that with
Spain of 1888 excepted. It is due to the stern attitude
of Great Britain, Switzerland, Belgium, France, and
the United States that the principle has conquered the
world. These countries, in which individual hberty is
the very basis of all political life, and constitutional
NON-EXTRADITION OP POLITICAL CRIMINALS 515
government a political dogma of the nation, watched
with abhorrence the methods of government of many
other States between 1815 and 1860. These Govern-
ments were more or less absolute and despotic, repress-
ing by force every endeavour of their subjects to obtain
individual liberty and a share in the government.
Thousands of the most worthy citizens and truest
patriots had to leave their country for fear of severe
punishment for political crimes. Great Britain, and
the other free countries, felt in honour bound not to
surrender such exiled patriots to the persecution of
their Governments, but to grant them an asylum.
§ 334. Although the principle became, and is, gener- Difficulty
ally^ recognised that political criminals should not?"""^™'
be extradited, serious difficulties exist concerning theConoep.
conception of ' pohtical crime.' This conception is of Political
great importance, as the extradition of a criminal may ^""'*'
depend upon it. It is unnecessary here to discuss the
numerous details of the controversy. It suffices to
state that, whereas many writers call such a crime ' poli-
tical ' as was committed from a pohtical motive, others
call ' pohtical ' any crime committed for a pohtical
purpose ; again, others recognise such a crime only as
' pohtical ' as was committed from a pohtical motive,
and at the same time for a pohtical purpose ; and,
thirdly, some writers confine the term ' pohtical crime '
to certain offences against the State only, such as high
treason, Use-majeste, and the hke.^ To the present day
all attempts to formulate a satisfactory conception of
the term have failed, and the reason of the thing will, I
beheve, for ever exclude the possibihty of finding a
satisfactory conception and definition.^ The difficulty
* See, however, below, § 340, con- o£ the different opinions is given,
oeming the reactionary movement in ' According to Stephen, Huttyry
the matter. of the Criminal Law in Englound,
* See Mettgenberg, Die Attentate- ii. p. 71, political crimes are such as
klcmiel im deutechen Ausliefervmgt- are incidental to, and form a part of,
recht (1906), pp. 61-76, where a survey political disturbances.
516
INDIVIDUALS
is caused through the so-called ' relative political crimes '
or delits complexes — namely, those complex cases in
which the pohtical ofience comprises at the same time ^
an ordinary crime, such as murder, arson, theft, and the
hke. Some writers deny categorically that such complex
crimes are political ; but this opinion is wrong and
dangerous, since indeed many honourable pohtical
criminals would have to be extradited in consequence
thereof. On the other hand, it cannot be denied that
many cases of complex crimes, although the deed may
have been committed from a pohtical motive or for a
pohtical purpose, are such as ought not to be considered
political. Such cases have aroused the indignation of
the whole civiHsed world, and have indeed endangered
the very value of the principle of non-extradition of
pohtical criminals. Three practical attempts have
therefore been made to deal with such complex crimes
without violating this principle.
The so- § 335. The first attempt was the enactment of the
Belgian so-called attentat clause by Belgium in 1856, following
Attentat the case of Jacquin ^ in 1854. A French manufacturer
named Jules Jacquin, domiciled in Belgium, and a
foreman of his factory named Celestin Jacquin, who
was also a Frenchman, tried to cause an explosion on
the railway hne between Lille and Calais with the in-
tention of murdering the Emperor Napoleon iii. France
requested the extradition of the two criminals, but the
Belgian Court of Appeal had to refuse the surrender on
^ The problem came twice before French anarchist who was prose-
the English courts ; see Ex parte cuted for having caused two ex-
Oasfiom, [1891] 1 Q.B. 149, and/n re plosions in France, one of which
Meunier, [1894] 2 Q.B. 415. In the resulted in the death of two indivi-
oase of Castioni, a Swiss who had duals, the extradition was granted
taken part in a revolutionary move- because the crime was not considered
ment in the canton of Tioino and had to be political. On the American
incidentally shot a member of the practice, see Hyde in A. J., viii.
Government, the court refused ex- (1914), pp. 491-495.
tradition because the crime was con-
sidered to be political. On the other ' See details in Marti tz, op. cit. , ii.
hand, in the case of Meunier, a p. 372.
NON-EXTEADITION OF POLmCAL CRIMmALS 517
account of the Belgian extradition law interdicting the
surrender of poHtical criminals. To provide for such
cases in the future, Belgium enacted in 1856 a law amend-
ing her extradition law, and stipulating that murder
of the head of a foreign Government, or of a member of
his family, should not be considered a poHtical crime.
Gradually all European States, with the exception of
England and Switzerland, have adopted that attentat
' clause, and a great many Continental writers urge its
adoption by the whole of the civihsed world.^
§ 336. Another attempt to deal with complex crimes, The
without detriment to the principle of non-extradition p"o7eorof
of political criminals, was made by Russia in 1881. i^si.
Influenced by the murder of the Emperor Alexander
II. in that year, Russia invited the Powers to hold an
< international conference at Brussels to consider the
proposal that henceforth no murder, or attempt to
murder, ought to be considered as a political crime. But
the conference did not take place, since Great Britain,
as well as France, decMned to take part in it.^ Thus the
development of things had come to a standstill, many
States having adopted, others decMning to adopt, the
Belgian clause, and the Russian proposal having fallen
through.
§ 337. Eleven years later, in 1892, Switzerland The Swiss
attempted a solution of the problem on a new basis. oUhe""
In that year Switzerland enacted an extradition law ?'^^olT
, . . . . 1" 1892.
whose Article 10 recognises the non-extradition of
poUtical criminals, but, at the same time, lays down the
rule that poHtical criminals shall nevertheless be sur-
rendered, in case the chief feature of the offence wears
more the aspect of an ordinary than of a poHtical crime,
and that the decision concerning the extraditabiHty of
such criminals rests with the Bundesgericht, the highest
' See Mettgenberg, op. cit., pp. ^ See details in Martitz, o^. ciJ. , ii.
109-lU. p. 479.
518 iNDrvrouALS
Swiss court of justice. This Swiss rule contains a
better solution of the problem than the Belgian attentat
clause, in so far as it allows the circumstances of the
special case to be taken into consideration. And the
fact that the decision is taken out of the hands of
the Government and transferred to the highest court of
the country, denotes likewise a remarkable progress.^
For the Grovemment cannot now be blamed whether
extradition is granted or refused, the decision of an
independent court of justice being a certain guarantee
that an impartial view of the circumstances of the case
has been taken.^
§ 338. The numerous attempts ^ against the lives of
heads of States, and the frequency of anarchistic crimes,
have shaken the value of the principle of non-extradition
of pohtical criminals in the opinion of the civilised world,
' See JjAUghard, Das schweizeriache its meeting at Geneva in 1892 (see
Auslie/erungsrecJit (1910), where all Anmiaire, xii. p. 182) adopted four
the oases are discussed which have mies concerning extradition of poli-
oome before the court since 1892. tical criminals, but I do not think
' It ought to be mentioned that that on the whole these rules give
the Institute of International Law at much satisfaction.
' Not less than twenty-four of these attempts have been successful since
1850, as the following formidable list shows : —
Charles in., Duke of Parma, murdered on March 26, 1854.
Prince Danilo of Montenegro, „ August 14, 1860.
President Abraham Lincoln, U.S.A., „ April 14, 1865.
Prince Michael of Serbia, ,, June 10, 1868.
President Balta of Peru, „ July 26, 1872.
President Moreno of Ecuador, ,, August 14, 1872.
Sultan Abdul Assis of Turkey, „ June 4, 1876.
Emperor Alexander n. of Bussia, ,, March 13, 1881.
President Garfield, U.S.A., „ July 2, 1881.
President Camot of France, ,, June 24, 1894.
Shah Nazr-e-Din of Persia, „ May 1, 1896.
Empress Elizabeth of Austria, ,, September 10, 1898.
King Humbert i. of Italy, „ July 29, 1900.
President McKinley, U.S.A., ,, September 6, 1901.
King Alexander i. of Serbia and
Queen Draga, „ June 11, 1903.
Bling Carlos i. of Portugal and
the Crown Prince, „ February 15, 1908.
President Caoeres of San Domingo, ,, November 19, 1911.
King George of Greece, ,, March 18, 1913.
Archduke Francis Ferdinand, the
heir-presumptive to the Austrian
throne, and his Consort, ,, June 28, 1914.
President Paes of Portugal, „ December 15, 1918.
President Carranza of Mexico, „ May 1920.
NON-EXTRADITION OF POLITICAL CRIMINALS 519
as illustrated by the three practical attempts described Rationale
above to meet certaia difficulties. It is, consequently, principle
no wonder that some writers ^ plead openly and directly ^^°^i_
for the abolition of this principle, maintaining that it tion of
was only the product of abnormal times and circum- criminals,
stances, such as were in existence during the first haK
of the nineteenth century, and that with their disappear-
ance the principle is likely to do more harm than good.
And indeed it cannot be denied that the application
of the principle in favour of some criminals, such as
anarchistic ^ murderers and bomb-throwers, could only
be called an abuse. But the question is whether, apart
from such exceptional cases, the principle itself is still
to be considered as justified or not.
Without doubt the answer must be in the affirmative.
I readily admit that every poUtical crime is by no means
an honourable deed, which as such deserves protection.
Still, pohtical crimes are committed by the best of
patriots, and, what is of more weight, they are in many
cases a consequence of oppression on the part of the
Government concerned. They are comparatively in-
frequent in free countries, where there is individual
hberty, where the nation governs itself, and where,
therefore, there are plenty of legal ways of bringing
grievances before the authorities. A free country can
never agree to surrender foreigners to their prosecuting
home State for deeds done in the interest of the same
freedom and Uberty which the subjects of such free
country enjoy. For individual Uberty and self-govern-
ment of nations are demanded by modern civihsation,
' See, for instance, Rivier, i. p. general body of citizens. They may,
354, and Soott in A.J., iii. (1909), secondarily and incidentally, com-
p. 459. mit offences against some particular
Government ; but anarchist offences
' ' - . . the party with whom the are mainly directed against private
accused is identified . . . namely citizens.' (From the judgment of
the party of anarchy, is the enemy Cave, J. /nreifeMmer, [1894]2Q.B.
of all Governments. Their efforts 419.) See also Diena in B.O., ii.
are directed primarily against the (1895), pp. 306-336.
520 INDIVIDUALS
and their gradual realisation over the whole globe is
conducive to the welfare of the human race.
Pohtical crimes may certainly be committed in the
interest of reaction, as well as in the interest of progress,
and reactionary pohtical criminals may have occasion
to ask for asylum, as well as progressive pohtical
criminals. The principle of non-extradition of pohtical
criminals indeed extends its protection over the former
too, and this is the very point where the value of the
principle reveals itself. For no State has a right to
interfere with the internal affairs of another State, and
if a State were to surrender reactionary pohtical criminals
but not progressive ones, the prosecuting State of the
latter could indeed complain, and consider the refusal
of extradition an unfriendly act. If, however, non-
extradition is made a general principle, which finds its
apphcation in favour of pohtical criminals of every
kind, no State can complain if extradition is refused.
Have not reactionary States the same faculty of refus-
ing the extradition of reactionary pohtical criminals as
free States have of refusing the extradition of progres-
sive pohtical criminals 1
Now, many writers agree upon this point, but main-
tain that such arguments meet the so-called purely
pohtical crimes only, and not the relative or complex
pohtical crimes, and they contend, therefore, that the
principle of non-extradition ought to be restricted to
the former crimes alone. But to this I cannot assent.
No revolt happens withoiit such complex crimes taking
place, and the individuals who commit them may indeed
deserve the same protection as other pohtical criminals.
And, further, although I can under no circumstances
approve of murder, can never s}Tnpatliise with a
murderer, and can never pardon his crime, it may well
be the case that the murdered official or head of a State
has by inhuman cruelty and oppression himself whetted
NON-EXTEADITION OP POLITICAL CEIMINAL8 521
the knife which cut short his span of life. On the other
hand, the mere fact that a crime was committed for a
political purpose may well be without any importance
in comparison with its detestabiUty and heinousness.
Attempts on heads of States, such, for example, as the
murders of PresidentsLincoln andCamot,or of Alexander
n. of Russia and Himibert of Italy, are as a rule, and
all anarchistic crimes are, without any exception, crimes
of that kind. Criminals who coromit such crimes ought,
under no circumstances, to find protection and asylum,
but ought to be surrendered for the purpose of receiving
their just and appropriate punishment.
§ 339. The question, however, is how to sift the chaff How to
from the wheat, how to distinguish between such poU- uuappu-
tical criminals as deserve an asylum, and such as do^*'^^
not. The difficulties are great, and partly insuperable, dpie ot
as long as we do not succeed in finding a satisfactory Sitk-n
conception of the term ' pohtical crime.' But such diffi- '^^f^'
culties are only partly, and not wholly insuperable. OnminaU.
The step taken by the Swiss extradition law of 1892 is
80 far a step in advance as to meet a great many of the
difficulties.^ There is no doubt that the adoption of the
Swiss rule by all the other civilised States would im-
prove matters more than the universal adoption of the
so-called Belgian attentat clause. The fact that, accord-
ing to Swiss law, each case of complex poUtical crime is
unravelled, and obtains the verdict of an independent
court according to the very circumstances, conditions,
and reqmrements under which it occurred, is of the
greatest value. It enables every case to be met in such
a way as it deserves, without compromising the Govern-
ment, and without sacrificing the principle of non-
extradition of poUtical criminals as a valuable rule. I
* The eleven cai*eH reported by gericht up to 1910, are very instruc-
Lftnghard, op. cil., pp. 49-69, which tive.
had been decided by the Bunden-
522 INDIVIDUALS
cannot support the charge made by some writers ^ that
the Swiss law is inadequate, because it does not give
criteria for the guidance of the court in deciding whether
extradition for complex crimes should be granted or
not. In my opinion, the very absence of such criteria
proves the superiority of the Swiss clause to the Belgian
attentat clause. On the one hand, the latter is quite
insufficient, for it is restricted to murder of heads of
States and members of their families only. I see no
reason why individuals guilty of any murder — as pro-
vided by the Russian proposal — or who have com-
mitted other crimes, such as arson, theft, and ike like,
should not be surrendered, in case the political motive
or purpose of the crime is of no importance, in a)m-
parison with the crime itself. On the oth^ hand, the
Belgian clause goes too far, since exceptional cases of
murder of heads of States from political motives, or for
political purposes, might occur, which did not deserve
extradition. The Swiss clause, however, with its absence
of fixed distinctions between such complex crim^ as are
extraditable and such as are not, permits the considera-
tion of the circumstances, conditions, and requirements
of the case in which a complex crime was committed.
It is true that the responsibility of the court of justice
which has to decide whether such a complex crime is
extraditable is great. But it is to be taken for granted
that such court will give its decision with impartiality,
fairness, and justice. And it need not be feared that
such court wUl grant asylum to a murderer, incendiary,
and the like, unless convinced that the deed was really
poMtical.
§ 340. Be that as it may, the present position is a
danger to the very principle of non-extradition of poU-
tical criminals. Under the influence of the excite-
ment caused by nvimerous criminal attempts in the last
* See, for instance, Martits, op. dL, il. pp. 533-539.
NON-EXTRADITION OF POLITICAL CRIMINALS 523
quarter of the nineteenth century, a few treaties were Reaotion-
conduded which made a wide breach in this principle, dition ™
Kussia led the reaction. This Power in 1885 concluded Treaties,
treaties with Prussia and Bavaria which stipulated the
extradition of all individuals who had made an attack
on the hfe, the body, or the honour ^ of a monarch, or
of a member of his family, or who had committed any
kind of murder, or attempt to murder. And the extra-
dition treaty between Russia and Spain of 1888 went
even further, and abandoned the principle of non-extra-
dition of pohtical criminals altogether. Fortunately,
the endeavour of Russia to abolish this principle alto-
gether did not succeed, and changed events may herald
a new pohcy for the future. In her extradition treaty
with Great Britain of 1886 she had to adopt it without
any restriction, and in her extradition treaties with
some other States, such as Portugal in 1887, Luxemburg
in 1892, the United States and Holland in 1893, she
had to adopt it with a restrictive clause similar to the
Belgian attentat clause.^
' Thus, even for Z^e-«8o/e«(^ extra- of 1911, see Devogel in R.I., 2nd
dition had to be granted. Ser. xiv. (1912), pp. 187-193.
' On the Russian Extradition Law
^'imw''
PART III
OKGANS OF THE STATES FOE THEIE
INTERNATIONAL RELATIONS
CHAPTER I
HEADS OF STATES, AND FOREIGN OFFICES
I
POSITION OP HEADS OF STATES ACCORDING TO
INTERNATIONAL LAW
Hall, § 97— Phillimore, ii. §§ 101 and 102— Hershey, No. 256— Bluntsohli,
§§ 115-125— Holtzendorff in Holtzendwff, ii. pp. 77-81— Ullmann, § 40
— Rivier, i. § 32— Nys, ii. pp. 378-382— Fiore, u. No. 1097— Bonfils,
No. 632 — M^rignhao, ii. pp. 294-305 — Bynkershoek, De Foro LegcUorwm
(1721), u. iii. § 13— Satow, DiplmnMic Practice, i. §§ 6-12.
§ 341. As a State is an abstraction from the fact that Necessity
a multitude of individuals live in a country under a foAvery
sovereign Government, every State must have a head as ^****-
its highest organ, which represents it, within and without
its borders, in the totality of its relations. Such head
is the monarch in a monarchy, and a president; or a
body of individuals, such as the Bundesrath of Switzer-
land, in a repubhc. The Law of Nations prescribes no
rules as regards the kind of head a State may have. Every
State is, naturally, independent regarding this point,
and possesses the faculty of adopting any constitution
it hkes and of changing such constitution according to
its discretion. Some kind or other of a head of the State
is, however, necessary according to International Law,
as without a head there is no State in existence, but
anarchy.
627
528 HEADS OP STATES, AND POEEIGN OFFICES
Reoogni- § 342. In case of the accession of a new head of a
Heads of State, othct States are, as a rule, notified. The latter
States, usually recognise the new head through some formal
act, such as a congratulation. But neither such noti-
fication, nor recognition, is strictly necessary according
to International Law, as an individual becomes head of
a State, not through the recognition of other States, but
through Municipal Law. Such notification and recogni-
tion are, however, of legal importance.^ For, through
notification, a State declares that the individual con-
cerned is its highest organ, and has, by Municipal Law,
the power to represent the State in the totality of its
international relations. And through recognition the
other States declare that they are ready to negotiate
with such individual as the ^highest organ of his State.
But recognition of a new head by other States is in every
respect a matter of discretion. A State has not the
right to demand from other States recognition of its
new head. Thus Eussia, Austria, and Prussia refused
until 1848 recognition to Isabella, Queen of Spain, who
had come to the throne as an infant in 1833. Again,
in 1914, the United States refused to recognise President
Huerta of Mexico. But in the long run recognition
cannot, in practice, be withheld, for without it inter-
national intercourse is impossible, and States with self-
respect will exercise retorsion if recognition is refused
to the heads they have chosen. Thus, when, after the
unification of Italy in 1861, Mecklenburg and Bavaria
refused to recognise Victor Emmanuel as King of Italy,
Count Cavour revoked the exequatur of the consuls of
these States in Italy.
But it must be emphasised that recognition of a new
head of a State by no means imphes the recognition of
such head as the legitimate head of that State. Kecog-
nition is, in fact, nothing else than the declaration of
* See above, § 75.
POSITION OF HEADS OF STATES 529
other States that they are ready to deal with a certain
individual as the highest organ of a particular State,
without prejudice to the question whether such indi-
vidual is, or is not, to be considered as the legitimate
head of that State.
§ 343. The head of a State, as its chief organ and Compe-
representative in the totality of its international rela- Heads°of
tions, acts for his State in its international intercourse, s***«^-
with the consequence that all his legally relevant inter-
national acts are considered to be acts of his State. His
competence to perform such acts is termed jits reprae-
sentationis omnimodae. It comprises in substance chiefly :
reception and mission of diplomatic agents and consuls,
conclusion of international treaties, declaration of war,
and conclusion of peace. But it is a question in each
case how far this competence is independent of Muni-
cipal Law. For heads of States exercise this competence
for their States, and as representing them, and not in
their own right. If a head of a State should, for instance,
ratify a treaty without the necessary approval of his
Parliament, he would go beyond his powers, and there-
fore such a treaty would not be binding upon his State.^
On the other hand, this competence is certainly inde-
pendent of the question whether a head of a State is
the legitimate head or a usurper. The mere fact that
an individual is for the time being the head of a State
makes him competent to act as such, and his State is
legally bound by his acts. It may, however, be diffi-
cult to decide whether a certain individual is, or is not,
the head of a State, for after a revolution some time
always elapses before matters are settled.
§ 344. Heads of States are never subjects ^ of the
Law of Nations. The position which a head of a State
' See below, § 497. derivatively as subjects of Interna-
' But Heffter (§ 48) maintains the tional Law. The matter is treated
contrary, and Phillimore (ii. § 100) in detail above, §§ 13 and 288-290 j
designates monarchs mediately and see also below, § 384.
VOL. I. 2l
530 HEADS OP STATES, AND FOREIGN OFFICES
Heads of has accordiiig to International Law is due to Mm, not as
Objects of ^^ individual, but as the head of his State. His posi-
^^,.^^*^°* tion is derived from international rights and duties
belonging to his State, and not from international rights
of his own. Consequently, all rights possessed by heads
of States abroad are not international rights, but rights
which must be granted to them by the Municipal Law
of the foreign State on whose territory they are tem-
porarily staying, and such rights must be granted in
compliance with international rights of the home States
of the respective heads. Thus, heads of States are not
subjects, but objects of International Law, and ia this
respect are hke any other individual.
Honours § 345. All houours and privileges due to heads of
r4es of" States from foreign States are derived from the fact
States °^ *^^* digiiity is a recognised quahty of States as members
of the Family of Nations and International Persons.^
Concerning such honours and privileges. International
Law distinguishes between monarchs and heads of
repubhcs. This distinction is the necessary outcome
of the fact that the position of monarchs, according to
the Municipal Law of monarchies, is totally difEerent
from the position of heads of republics, according to
the Municipal Law of republics. For monarchs are
sovereigns, but heads of repubhcs are not.
II
MONARCHS
Vattel, i. §§ 38-45 ; iv. § 108— Hall, § 49— Lawrence, § 105— PhiUimore, ii.
§§ 103-113— Taylor, § 184-Moore, ii. § 250— Hershey, No. 281—
Bluntsohli, §§ 126-153— Hefifter, §§ 48-57— UUmann, §§ 41-42— Rrvier,
i. § 33— Nys, ii. pp. 331-348— Calvo, iii. §§ 1454-1479— Piore, ii.
Nos. 1098-1102— Bonfils, Nos. 633-647— M^rignhao, ii. pp. 294-314—
Pradier-Foddr^, iii. Nos. 1564-1591 — Praag, Nos. 191-202 — Satow,
Diplomatic Practice, i. §§ 6-12.
* See above, § 121.
MONARCHS 531
§ 346. In every monarchy the monarch appears as Sove-
the representative of the sovereignty of the State, and m<S.*^ °
thereby becomes a sovereign himself ; and this fact '^'^°^^-
is recognised by International Law. And the difference
between the Municipal Laws of the different States
regarding this point matters in no way. Consequently,
International Law recognises all monarchs as equally
sovereign, although the difference between the constitu-
tional positions of monarchs is enormous, if looked upon
in the Hght of the rules laid down by the constitutional
laws of the different States.
§ 347. Not much need be said as regards the con- Consi-
sideration due to a monarch from other States when^^g^tJ,""
within the boundaries of his own State. Foreign States Monarchs
.,.,. , , ..".. ,at Home.
have to give him his usual and recogmsed predicates ^
in all official communications. Every monarch must
be treated as a peer of other monarchs, whatever differ-
ence in title and actual power there may be between
them.
§ 348. However, as regards the consideration due to Consi-
a monarch abroad from the State on whose territory due\o°"
he is staying, in time of peace, and with the consent and ^^"^^^^^^
the knowledge of the Government, details must neces-
sarily be given. It consists of honours, inviolabiUty,
and exterritoriaUty.
(1) In consequence of his character of sovereign,
his home State has the right to demand that certain
ceremonial honours should be rendered to him, to the
members of his family, and to the members of his
retinue. He must be addressed by his usual predicates.
Mihtary salutes must be paid to him, and the like.
(2) As his person is sacrosanct, his home State has
a right to insist that he should be afforded special pro-
tection as regards personal safety, the maintenance of
personal dignity, and unrestrained intercourse with his
^ BetaiU as regards the predicates of monarchs are given above, § 119.
532 HEADS OP STATES, AND FOREIGN OFFICES
Gfovemment at home. Every ofience against him must
be visited with specially severe penalties. On the other
hand, he must be exempt from every kind of cnminal
jurisdiction. The -wife of a sovereign must be afforded
the same protection and exemption.
(3) He must be granted so-called exterritoriahty
conformably with the principle, pir in parem rum
habet imperium, according to which one sovereign
cannot have any power over another sovereign. He
must, therefore, ia every point be exempt from taxa-
tion, rating, and every fiscal regulation, and likewise
from civil jurisdiction, except when he himself is the
plaintiff.! The house where he has taken his residence
must enjoy the same exterritoriahty as the official resi-
dence of an ambassador ; no pohceman, or other official,
must be allowed to enter it without his permission.
Even if a criminal takes refuge there, the poKce must
be prevented from entering it, although, if the surrender
of the criminal is dehberately refused, the Government
may request the recalcitrant sovereign to leave the
country, and then arrest the criminal. If a foreign
sovereign has real property in a country, such pro-
perty is under the jurisdiction of the latter. But as
soon as such sovereign takes up his residence on the
property, it must become exterritorial for the time being.
Further, a sovereign stajong in a foreign country must
be allowed to perform all his own governmental acts
and functions, except when his country is at war with
a third State, and the State in which he is staying
remains neutral. And, lastly, a sovereign must be
allowed, within the same limits as at home, to exercise
civil jurisdiction over the members of his retinue. In
• Hvllet V. ^1713 of Spain, (1828) de Beglemenf intemationcU sur la Com-
2 Bligh N.S. 310. See also above, petence dee Tribunaux dans les Procet
§ 115, and the cases there quoted ; centre leg ^tatg soitverains on Ohefi
PhJlUmore, ii. § 1 13a ; Loening, Die d'Aat eirangert, adopted by tite
GeridUsharkeit uber Jremde Staaten Institute of International Law in
und Sowverane {IQOZ) ; and the Prqjei 1891 {Amuiaire, zi. (1892), p. 436).
MONARCHS 533
former times, even criminal jurisdiction over the inembers
of his suite was very often claimed and conceded, but
this is now antiquated.^ The wife of a sovereign must
Hkewise be granted exterritoriality, but not other
members of a sovereign's family.^
However, exterritoriahty is in the case of a foreign
sovereign, as in any other case, a fiction only, which
is kept up, for certain purposes, within certain limits.
Should a sovereign, during his stay within a foreign
State, abuse his privileges, such State is not obUged to
bear such abuse tacitly and quietly, but can request him
to leave the country. And when a foreign sovereign
commits acts of violence, or such acts as endanger
the internal or external safety of the State, the latter
can put him under restraint to prevent further acts of
the same kind, but must at the same time bring him as
speedily as possible to the frontier.
§ 349. The position of individuals who accompany The
a monarch during his stay abroad is a matter of some Monarch's
dispute. Several pubhcists maintain that the home ■^^^'o^'i-
State can claim the privilege of exterritoriahty for
members of his suite as well as for the sovereign him-
self ; but others deny this.^ I beheve that the opinion
of the former is correct, since I cannot see any reason
why a sovereign abroad should, as regards the members
of his suite, be in an inferior position to a diplomatic
envoy.*
§ 350. Hitherto only the case where a monarch is Monarohs
staying in a foreign country with the official knowledge in^gnSo.
of the Government of the latter has been discussed.
' A celebrated case happened on Bluntsohli, § 154 ; but, according to
November 10, 1657, in France, when Bluntsohli, exterritoriality need not
Christina, Queen of Sweden, although in strict law be granted even to the
she had already abdicated, sentenced wife of a sovereign,
her grand equerry, Monaldeschi, to ' See Bluntschli, § 154, and Hall,
death, and had him executed by her § 49, in contradistinction to Martens,
bodyguard. i. § 83.
^ See Rivier, i. p. 421, and * See below, §§ 401-405.
534 HEADS OP STATES, AND FOREIGN OEEICBS
Such knowledge may be possessed in the case of a
monarch travelling incognito, and then he enjoys
the same privileges as if travelUng not incognito. The
only difference is that many ceremonial observances,
which are due to a monarch, are not rendered to him
when travelUng incognito. But the case may happen
that a monarch is travelHng in a foreign country
incognito without the Government of the latter having
the slightest knowledge thereof. He cannot then, of
course, be treated otherwise than as any other foreign
individual ; but he can at any time make known his
real character, and assume the privileges ^ due to him.
Thus the late King William of Holland, when traveUing
incognito in Switzerland in 1873, was condemned to a
fine for some slight contravention, but the sentence was
not carried out, as he gave up his incognito.^
Deposed § 351. All privileges mentioned must be granted to
oated^^"^''^ monarch only as long as he is really the head of a
^°°- State. As soon as he is deposed or has abdicated, he
arcns. . .
is no longer a sovereign. Therefore in 1870 and 1872
the French courts permitted, because she was deposed,
civil actions against Queen Isabella of Spain, then living
in Paris, for nioney due to the plaintiffs. Nothing, of
course, prevents the Municipal Law of a State from
granting the same privileges to a foreign deposed or
abdicated monarch as to a foreign sovereign, but the
Law of Nations does not exact any such courtesy.
Regents. § 352. All privileges due tp'S monarch are also due to
a regent, at home or abroad, whilst he governs on behalf
of an infant, or of a king who is, through illness, in-
capable of exercising his powers. And it matters not
whether the regent is a member of the king's family
and a prince of royal blood, or not.
• See Mighell v. Sultan of Johore, Wheaton, iii. p. 428 ; Pradier-FodSri,
[1894] 1 Q.B. 149. iii. No. 1582, and B.I., v. (1873),
' See Lawi-enoe, Commentaire tur p. 246.
PRESIDENTS OF REPUBLICS 535
§ 353. When a monarch accepts any office in a foreign Monarohs
State, when, for instance, he serves in a foreign army, service or
as did formerly many monarchs of the small German g^^jfrdgn
States, he submits to such State as far as the duties of Powers.
the office are concerned, and his home State cannot
claim any privileges for him that otherwise would be
due to him.
When a monarch is at the same time a subject of
another State, a distinction must be made between his
acts as a sovereign, on the one hand, and his acts as a
subject, on the other. For the latter, the State whose
subject he is has jurisdiction over him, but not for the
former. Thus, in 1837, the Duke of Cumberland became
King of Hanover, but at the same time he was by heredi-
tary title an English peer and therefore an Enghsh sub-
ject. And in 1844, in the case of D^ike of Brunswick v.
King of Hanover,^ the Master of the Rolls held that the
King of Hanover was hable to be sued in the courts of
England in respect of any acts done by him as an
Enghsh subject.
Ill
PRESIDENTS OP REPUBLICS
Bluntsohli, § 134— Stoerk in Holtzendorff, ii. p. 661— UUmann, § 42— Rivier,
i. § 33 — Martens, i. § 80 — Walther, Daa 8taatshav/pt in den BepuUihen
(1907), pp. 190-204— Praag, No. 192— Satow, Diplomatic Practice, i.
§ 9.
§ 354. In contradistinction to monarchies, in repubhcs Presi-
the people itself, and not a single individual, appears sove^ °°
as the representative of the sovereignty of the State, "^^'S"^-
and, accordingly, the people styles itseli the sovereign
of the State. And it will be remembered that the head
' 6 Beav. 1 ; 2 H.L.C. 1 ; see also Phillimore, ii. § 109.
536 HEADS OF STATES, AND FOREIGN OFFICES
of a republic may consist of a body of individuals, such
as the Bundesrath in Switzerland. But in case the
head is a president, as in France and the United States
of America, the president represents the State, at any
rate in the totahty of its international relations. He is,
however, not a sovereign, but a citizen, and a subject
of the very State of which, as president, he is head.
Position § 355. Consequently, his position at home and abroad
dents in caunot be compared with that of monarchs, and Inter-
generai. national Law does not empower his home State to claim
for him the same, but only similar, consideration as
that due to a monarch. Neither at home nor abroad,
therefore, does a president of a republic appear as a peer
of monarchs. Whereas all monarchs are in the style
of the court phraseology considered as though they
were members of the same family, and therefore address
each other in letters as ' my brother,' a president of
a republic is usually addressed in letters from monarchs
as ' my friend.' His home State can certainly claim at
home and abroad such honours for him as are due to
its dignity, but no such honours as must be granted to
a sovereign monarch.
Position § 356. As to the position of a president when abroad,
dents writers on the Law of Nations do not agree. Some^
Abroad, jj^aintaiu that, since a president is not a sovereign, his
home State can never claim for him the same privileges
as for' a monarch, and especially that of exterritoriality.
Others ^ make a distinction whether a president is
staying abroad in his official capacity as head of a State,
or for his private purposes, and they maintain that his
home State could only in the first case claim exterri-
toriality for him. Others ^ again will not admit any difEer-
ence in the position of a president abroad from that of
' Ullmann, § 42 ; Rivier, i. p. 423 ; § 97.
Stoerk in Holtzendorff, ii. p. 658. ' Bonfils, No. 632; Nys, ii. p. 338;
2 Martens, i. § 80 ; Bluntsohli, M6rignhao, ii. p. 298 ; Liszt, § 13 ;
§ 134; Despagnet, No. 254; Hall, Walther, op. cit., p. 195.
FOREIGN OFFICES 537
a monarch abroad. With regard to ceremonial honours
due to a president when abroad on official business, when
the President of the United States visited England in
December 1918, he received such ceremonial honours as
are due to a monarch. As regards exterritoriahty, I
beheve that future contingencies will create the prac-
tice on the part of the States of granting this privilege
to presidents and members of their suite as in the case
of monarchs. I cannot see that there is any danger in
such a grant. And nobody can deny that, if exterri-
toriahty is not granted, all kinds of friction and even
conflicts might arise. Although not sovereigns, pre-
sidents of repubhcs fill, for the time being, a subUme
office, and the grant of exterritoriahty to them is a
tribute paid to the dignity of the States they represent.
IV
FOREIGN OFFICES
HefPter, § 201— Geffoken in HoUzendorff, iii. p. 668— Ullmann, § 43— Rivier,
i. § 34— Bonfils, Nos. 648-651- Nys, ii. pp. 383-387— Hershey, No. 257
— Satow, Diplomatic Practice, i. §§ 13-20.
§ 357. As a rule nowadays no head of a State, be he Position
a monarch or a president, negotiates directly, and in secretary
person, with a foreign Power, although this happens foreign
occasionally. The necessary negotiations are regularly Affairs.
conducted by the Foreign Office, an office which, since
the Westphalian Peace, has been in existence in every
civilised State. The chief of this office, the Secretary
for Foreign Affairs, who is a Cabinet minister, directs the
foreign affairs of the State in the name of the head and
with his consent ; he is the middleman between the
head of the State and other States. And although many
a head of a State in fact directs all the foreign afEairs
538 HEADS OF STATES, AND FOREIGN OFFICES
himself, the Secretary for Foreign Affairs is neverthe-
less the person through whose hands all transactions
must pass. Now, as regards the position of such Foreign
Secretary at home, it is the Municipal Law of a State
which regulates this. But International Law defines
his position regarding international intercourse with
other States. He is the chief over all the ambassadors
of the State, over its consuls, and over its other agents
in matters international. It is he who, either in person,
or through the envoys of his State, approaches foreign
States for the purpose of negotiating matters inter-
national. And, again, it is he whom foreign States,
through their Foreign Secretaries or their envoys,
approach for the like purpose. He is present when
ministers hand in their credentials to the head of the
State. All documents of importance regarding foreign
matters are signed by him or his substitute, the Under-
Secretary for Foreign Affairs. It is, therefore, usual
to notify the appointment of a new Foreign Secretary
of a State to such foreign States as are represented
within its boundaries by diplomatic envoys ; the new
Foreign Secretary himself makes this notification.
CHAPTEE II
DIPLOMATIC ENVOYS
I
THE INSTITUTION OF LEGATION
Grotius, ii. c. 18— Phillimore, ii. §§ 148-153— Taylor, § 274— Twlas, § 199—
Geffoken in HoUzendorff, iii. pp. 605-618— Nys, ii. pp. 393-395— Rivier,
i. § 35 — UUmann, § 44 — Martens, ii. § 6 — -Gentilis, De LegcUUmibua Libri
III. (1585) — Wioquefort, L' Amhaaaadear et se» Fonotiona (IQ%Q) — Bynker-
shoek, De Foro Legatorum (1721) — Garden, TraiU complet de Diplomaiie
(3 vols. 1833) — Miruss, Das ewropaische Gesandtscfiaftsrecht (2 vols.
1847) — Charles de Martens, Le Guide diplomatique (2 vols. 1832 ; 5th ed.
by Gefifoken, 1866) — Anonymous, Embassies and Foreign Courts (1855) —
Montague Bernard, Four Lectures on Subjects connected with Diplomacy
(1868), pp. 111-162 (3rd Lecture) — Alt, Handbu^h dea europaischen
Gesandtschaftsrechta (1870) — ^Pradier-Fod6r6, Gours de Droit diplomatique
(2 vols. 2nd ed. 1899) — Krauske, Die Entunckelung- der standigen
Diplomatie, etc. (1885) — Lehr, Manuel theorique et pratique des Agents
diplomatiques (1888) — Hill, History of Diplomacy in the International
Development of Europe, vol. i. (1905), vol. ii. (1906), vol. iii. (1914)—
Foster, The Practice of Diplomacy (1906) — Week, La Sepr^entation
diplomatique de la Suisse (1911) — Satow, Diplomatic Practice, i. §§ 1-5,
89-96, 139-167.
§ 358. Legation, as an institution for the purpose of Deveiop-
negotiating between different States, is as old as history, Lega-°
whose records are full of examples of legations sent and *'°"^-
received by the oldest nations. And it is remarkable
that even in antiquity, where no such law as the
modern International Law was known, ambassadors
everywhere enjoyed a special protection and certain
privileges, although not by law but by rehgion, ambas-
sadors being looked upon as sacrosanct. Yet per-
540
DIPLOMATIC ENVOYS
manent legations were unknown till very late in the
Middle Ages. The fact that the Popes had permanent
representatives — so-called apocrisiarii or responsales —
at the court of the FranMsh kings and at CJonstanti-
nople until the final separation of the Eastern from the
Western Church, ought not to be considered as the
first example of permanent legations, as the task of these
papal representatives had nothing to do with inter-
national afEairs, but with those of the Church only. It
was not until the thirteenth century that the first per-
manent legations made their appearance. The Itahan
republics, and Venice in particular, set the example ^
by keeping representatives stationed at one another's
capitals for the better negotiation of their international
affairs. And in the fifteenth century these repubhcs
began to keep permanent representatives in Spain,
Gtermany, France, and England. Other States followed
the example. Special treaties were often concluded
stipulating permanent legations, such as one in 1520, for
instance, between the King of England and the Emperor
of Grermany. From the end of the fifteenth century
England, France, Spain, and Germany kept up per-
manent legations at one another's courts. But it was
not until the second half of the seventeenth century
that permanent legations became a general institu-
tion, the Powers following the example of France under
Louis XIV. and Richelieu. It ought to be specially men-
tioned that Grotius ^ thought permanent legations to
be wholly unnecessary. The course of events has,
however, shown that Grotius' views as regards
permanent legations were short-sighted. Nowadays
the Family of Nations coiild not exist without them,
as they are the channel through which nearly the
' See Nys, Les Origines du Droit possunt, quae nuno in usu svmt
intematumal (1894), p. 295. legationes assiduae, quibus quam
" De Jure Belli ac Pact*, ii. c. 18, non sit opus dooet mos antiquus, oui
§3: 'Optimo autem jure rejioi illae ignoratae.'
THE INSTITUTION OF LEGATION 541
whole, and certainly all important, official intercourse
of the States flows.
§ 359. The rise of permsunent legations created the Dipio-
necessity for a new class of State officials, the so-called ^'^^'
diplomatists ; yet it was not until the end of the
eighteenth century tJiat the terms 'diplomatist' and
' diplomacy ' CAme into general use. And although the
art of diplomacy is as old as officiad intercourse between
States, sucli a special class of officials as are now called
diplomatists did not, and could not, exist until per-
manent legations had become a general institution. In
this, as in other cases, the office has created tJie class of
men necessary for it. International Law has nothing
to do with the education and general character of these
officials. Evexy State is naturally competent to create
its own rules, ^ if any, as regards these points. Nor has
International Law ain-thing to do with diplomatic
usages, although these are more or less of importance, as
they may occasionally grow into customary rules of
International Law. But I would notice one of these
usages — namely, that as regards the language which is
in use in diplomatic intercourse. This language was
formerly Latin, but through the political ascendancy
of France under Louis xrv. it became Frencii. How-
ever, tMs is a usage of diplomacy only, and not a rule
of International Law.^ Each State can use its own
language in all official communications to other States,
and States which have the same language regularly do
so in their intercourse with each other. But between
States of different tongues and, further, at conferences
and congresses, it is convenient to make use of a
language which is generally known. This is nowadays
French, but nothing could prevent diplomatists from
dropping French at any moment and adopting another
' .\s to some ot thesa?. see Strupp ' See Mimss. Das ewropdi*(A«
u> £.1., XXV. pp. 65129. OMOiutoeAtb^UrtciU, i. §§ 266-268.
542
DIPLOMATIC ENVOYS
language instead. Article 120 of tlie General Treaty of
the Vienna Congress of 1815 expressly observes that
the fact of the French language having been exclusively
employed in all the copies of that treaty is not to be
construed into a precedent for the future, and that every
Power reserves to itself the right to adopt, in future
negotiations and conventions, the language which it
had previously employed in its diplomatic relations.
And it should be specially noticed that at the Peace
Conference at Paris in 1919, the English and French
languages were treated on a footing of equahty, and
the EngUsh and French texts of the Treaty of Peace
with Germany, which includes the Covenant of the
League of Nations, are both authentic.
II
EIGHT OF LEGATION
Grotius, ii. o. 18— Vattel, iv. §§ 55-68— Hall, § 98— Phillimore, ii. §§ 115-
139 — Taylor, §§ 285-288 — Twiss, §§ 201-202 — Hershey, No. 258—
Wheaton, §§ 206-209— Bluntsohli, §§ 159-165— Heffter, § 200— Geffcken
in HoUzendorff, iii. pp. 620-631— Ullmann, § 45— Rivier, i. § 35—
Nys, ii. p. 392— Bonfils, Nos. 658-667— Pradier-Fod6r6, iii. Nos. 1225-
1256— JFiore, ii. Nos. 1112-1117— Calvo, iii. §§ 1321-1325— Martens, ii.
§§ 7-8— Satow, Diplomatic Practice, i. §§ 207-220.
Conoep- § 360. Right of legation is the right of a- State to
Right of send and receive diplomatic envoys. The right to send
Legation, g^gj^ euvoys is termed active right of legation, in contra-
distinction to the passive right of legation, as the right
to receive such envoys is termed. Some writers^ on
International Law assert that no right but a mere com-
petence to send and receive diplomatic envoys exists
according to International Law, maintaining that no
State is bound by International Law to send or receive
such envoys. But this is certainly wrong in its gener-
• See, for instance, Wheaton, § 207 ; Heilborn, System, p. 182.
EIGHT OP LEGATION 543
ality. Obviously a State is not bound to send diplo-
matic envoys or to receive fermanent envoys. But, on
the other hand, the very existence ^ of the Family of
Nations makes it necessary for the members, or some
of the members, to negotiate occasionally on certain
points. Such negotiation would be impossible in case
one member could always, and under all circumstances,
refuse to receive an envoy from the other members.
The duty of every member to listen, under ordinary
circumstances, to a message from another member
brought by a diplomatic envoy is, therefore, an out-
come of its very membership of the Family of Nations,
and this duty corresponds to the right of every member
to send such envoys. But the exercise of the active
right of legation is discretionary. No State need send
diplomatic envoys at all, although practically aU States
do at least occasionally send such envoys, and most
States send permanent envoys to many other States.
The passive right of legation is discretionary as regards
the reception of permanent envoys only.
The League of Nations, being an International Person
mi generis, possesses the right of legation, although it
is not a State.
§ 361. Not every State possesses the right of legation. What
This right belongs chiefly to full sovereign States,^ for ^^^^
other States possess it under certain conditions only, the Right
(1) Half sovereign States, such as States under thetion.
suzerainty, or the protectorate, of another State, can,
as a rule, neither send nor receive diplomatic envoys.
Thus Egypt is destitute of such a right, and the Powers
are represented there only by consuls. But there may
' See above, § 141. matic envoys. That they are actually
' It should be emphasised that the not diplomatic envoys, although so
Holy See, which is in some respects treated, becomes apparent from the
treated as though an International fact that they are not agents for
Person, can send and receive envoys, international affairs of States, but
who must in every respect be con- exclusively for affairs of the Roman
sidered as though they were diplo- Catholic Church. See above, § 106.
544
DIPLOMATIC ENVOYS
be exceptions to this rule. Thus, according to the
Peace Treaty of Kainardgi of 1774 between Russia
and Turkey, the two half sovereign principahties of
Moldavia and Wallachia had the right of sending
charges d'affaires to foreign Powers. Thus, further,
before the Boer War, the South African Republic, which
was, in the opinion of Great Britain, a State under
British suzerainty, used to keep permanent diplomatic
envoys in several foreign States.
(2) Part sovereign member-States of a Federal State
may, or may not, have the right of legation as well as
the Federal State. It is the constitution of the Federal
State which regulates this point. Thus, the member-
States of Switzerland and of the United States of
America have no right of legation, but those of the
German Empire before the World War certainly had.
Bavaria, for example, used to send and receive several
diplomatic envoys.
Right of § 362. As, according to International Law, a State
by^whom is represented in its international relations by its head,
exercised, ^fcg rig]it of legation is exercised through him. But just
as Municipal Law designates the person who is the
head of the State, so it may impose certain conditions
and restrictions upon him as regards the exercise of
this right. And the head himself may, provided that
it is sanctioned by the Mimicipal Law of his State,
delegate ^ the exercise of this right to any representa-
tive he chooses.
It may, however, in consequence of revolutionary
movements, be doubtful who is the real head of a State,
and in such cases it remains in the discretion of foreign
States to make their choice. But it is impossible for
foreign States to receive diplomatic envoys from both
claimants to the headship of the same State, or to send
' See Fhillimore, ii. §§ 126-129, where several interesting oases of suoh
delegation are discussed.
KINDS ANB CLASSES OP DIPLOMATIC ENVOYS 545
diplomatic envoys to both of them. And as soon as
a State has recognised the head of a State who came into
his position through a revolution, it can no longer keep
up diplomatic relations with the former head.
It should be mentioned that a revolutionary party
which is recognised as a belUgerent Power has never-
theless no right of legation, although foreign States may
negotiate with it in an informal way through poUtical
agents without diplomatic character, to provide for
the temporary security of the persons and property of
their subjects within the territory under the actual
sway of such a party. A revolutionary party which is
recognised as a belligerent Power is, in some points only,
treated as though it were a subject of International
Law ; but it is not a State, and there is no reason why
International Law should give it the right to send and
receive diplomatic envoys.
It should further be mentioned that neither an
abdicated, nor a deposed, head has a right to send
or receive diplomatic envoys,^
III
]|INDS AND CLASSES OF DIPLOMATIC ENVOYS
Vattel, iv. §§ 6S-^5— Phillimore, ii. §§ 211-226— Twias, i. §§ 204-209— Hershey,
No. 261— Moore, iv. § 624— Heffter, § 208— Geffoken in Holtzendorff, iii.
pp. 635-646— Calvo, iii. §§ 1326-1336— Bonfila, Nob. 668-676— Pradier-
Fod6r6, iii. §§ 1277-1290— Rivier, i. pp. 443-453— Nys, ii. pp. 396-400—
Satow, Diplomatic Practice, i. §§ 263-277.
§ 363. Two different kinds of diplomatic envoys are Envoys
to be distinguished — namely, such as are sent for poh- ^^^Li
tical negotiations, and such as are sent for the purpose and
of ceremonial function or notification of changes in the
' See Phillimore, ii. §§ 124-125, ambassador of Mary Queen of Soots,
where the case of Biihop Eos; ' is discussed.
VOL. 1. 2m
546 DIPLOMATIC ENVOYS
headship. For States very often send special envoys
to one another on occasions of coronations, weddings,
funerals, jubilees, and the like ; and it is also usual to
send envoys to announce a fresh accession to the throne.
Such envoys ceremonial have the same standing as envoys
pohtical for real State negotiations. Among the envoys
pohtical, again, two kinds are to be distinguished —
namely (1), such as are permanently or temporarily
accredited to a State for the purpose of negotiating with
sach State, and (2), such as are sent to represent the
sending State at a congress or conference. The latter
are not, or need not be, accredited to the State on whose
territory the congress or conference takes place, but
they are nevertheless diplomatic envoys, and enjoy aU
the privileges of such envoys as regards exterritoriaUty
and the like which concern the inviolability and safely
of their persons and the members of their suites.
CHasses § 364. Diplomatic envoys accredited to a State or to
rf^Mpio- ^^^ League of Nations differ in class. These classes did
Envoys, j^q^; exist in the early stages of International Law. But
during the sixteenth century a distinction between two
classes of diplomatic envoys gradually arose, and at
about the middle of the seventeenth century, after per-
manent legations had come into general vogue, two such
classes became generally recognised — namely, extra-
ordinary envoys, called Ambassadors, and ordinary
envoys, called Residents ; Ambassadors being received
with higher honours and taking precedence of the other
envoys. Disputes arose frequently regarding preced-
ence, and the States tried in vain to avoid them by
introducing during the eighteenth century another class
— ^namely, the so-caUed Ministers Plenipotentiary. At
last the Powers assembled at the Vienna Congress came
to the conclusion that the matter ought to be settled
by an international understanding, and they agreed,
therefore, on March 19, 1815, upon the establishment
KmiS AND CLASSES OF DIPLOMATIC ENVOYS 547
of three LdifEerent classes — namely, first, Ambassadors ;
second. Ministers Plenipotentiary and Envoys Extra-
ordinary ; third. Charges d'Afiaires. And the five
Powers assembled at the Congress of Aix-la-Chapelle in
1818 agreed upon a fourth class — namely. Ministers
Resident, to rank between Ministers Plenipotentiary
and Charges d'Afiaires. All the other States either
expressly or tacitly accepted these arrangements, so
that nowadays the four classes are an estabhshed order.
Although their privileges are materially the same, they
differ in rank and honours, and they must therefore
be treated separately.
§ 365. Ambassadors form the first class. Only the Ambas-
League of Nations and States enjojdng royal honours ^ ^^°^^-
are entitled to send and to receive Ambassadors, as also
is the Holy See, whose fixst-class envoys are called
Nuncios, or Legati a latere or de latere.^ Ambassadors
are considered to be personal representatives of the
heads of their States, and enjoy, for this reason, special
honours. Their chief privilege — namely, that of nego-
tig,ting with the head of the State personally — ^has,
however, little value nowadays, as all States have, to a
certain extent, constitutional government, and this
necessitates that all the important business should go
through the hands of a Foreign Secretary. Ambas-
sadors can also claim the title of ' Excellency,' and it is
asserted that they can at all times ask for an audience
from the head of the State to whom they are accredited.
§ 366. The second class, the Ministers Plenipoten- Ministers
tiary and Envoys Extraordinary, to which also belong potenkary
the Papal Internuncios, are not considered to be per- and
sonal representatives of the heads of their States. Extra-
Therefore they do not enjoy all the special honours of °'''^"^=''^y-
' See above, § 117 (1). or de latere. A legatua a latere or
de latere is a Papal envoy who is a
' There is no diflFerenee in rank Cardinal, whereas a Nwncio is not a
between Nuncios and Legati a latere Cardinal.
d'ASarea.
548 DIPL03IATIC ENVOYS
the Ambassadois, have not the privilege o; treating
with the head of the State personally, and cannot at
aU times ask for an audience with him- But otherwise
there is no difference between these two classes, except
that ilinisters Plenipotentiary receive the title of ' Excel-
lency,' by courtesy only, and not by right.
Mimsters § 367. The third class, the Ministers Resident, enjoy
^^^^^^ fewer honours, and rank below the ^Mimsters Pleni-
potentiary. But beyond the fact that Ministers Resident
do not enjoy the title ' Excellency,' even by courtesy,
there is no difference between them and the Ministers
Plenipotentiary.
§ 368. The fourth class, the Charges d'Afiaires, differs
chiefly in one point from the first, second, and third
class — ^namely, in that they are accredited from Foreign
Office to Foreign Office, whereas the other classes are
accredited from head of State to head of State. Charges
d'Affaices do not enjoy, therefore, so many honours as
other diplomatic envoys.
A distinction ought to be made between a Chaige
d'Afiaires who is the head of a legation, and who,
therefore, is accredited from Foreign Office to Foreign
Office, and a Charge d'Afiaires ad interim. The latter
is a member of a legation whom the head of the lo-
tion del^ates for the purpose of taking his place during
absence on leave. Such Chai^ d'Afiaires ad interim,
who had better be called a Charge des Affaires/ ranks
below the ordinary Charge d'Afiaires ; he is not
accredited from Foreign Office to Foreign Office, but is
simply a delegate of the absent head of the legation.
The Di- § 369. All the diplomatic envoys accredited to the
^^^ same State form, according to a diplomatic usage, a
body which is styled the ' Diplomatic Corps.' The
head of this body, the so-called ' Doyen,' is the Papal
Nuncio, or, in case there is no Xnncio accredited, the
' S^e Eivier, i pp. 451-452.
APPOINTMENT OP DIPLOMATIC ENVOYS 549
oldest Ambassador, or, failing Ambassadors, the oldest
Minister Plenipotentiary, and so on. As the Diplo-
matic Corps is not a body legally constituted, it per-
forms no legal functions, but it is nevertheless of great
importance, as it watches over the privileges and
honours due to diplomatic envoys.
IV
APPOINTMBNT OF DIPLOMATIC ENVOYS
Vattel, iv. § 76-77— PhilUmore, ii. §§ 227-231— Twiss, i. §§ 212-214—
UUmann, § 48— Calvo, iii. §§ 1343-1345— Nys, ii. p. 402— Bonfils,
Nos. 677-680— Wheaton, §§ 217-220— Moore, iv. §§ 632-635— Hershey,
Nos. 262-265— Satow, Diplomatic Practice, i. §§ 221-242.
§ 370. International Law has no rules as regards the Peraon
qualification of the individuals whom a State can appoint fioat^n^of
as diplomatic envoys, States being naturally competent g ®
to act according to discretion, although of course there
are many quaUfications a diplomatic envoy must possess
to fill his office successfully. The Municipal Laws of
many States comprise, therefore, many details as
regards the knowledge and training which a candidate
for a permanent diplomatic post must possess, whereas,
regarding envoys ceremonial, even the Municipal Laws
have no provisions at all. The question is sometimes
discussed whether females ^ might be appointed envoys.
History relates a few cases of female diplomatists.
Thus, for example, Louis xiv. of France accredited in
1646 Madame de Guebriant ambassador to the court
of Poland. During the last two centuries, however,
no such case has to my knowledge occurred, although I
doubt not that International Law does not prevent a
^ See MirusB, Das ewropaische ii. § 134 ; and Fooherini, Le Signore
Oaaindtschafiarecht, i. §§ 127-128; AnibascicUrici dei Secoli xvii. e xviii. b
Embaeiies and Foreign Cou/rtt loro Poaizione nel Diritto diplonuUico
(Anon.), pp. 102-109; Phillimore, (1909).
550 DIPLOMATIC ENVOYS
State from sending a female as diplomatic envoy. But
under the present circumstances many States would
refuse to receive her.
Letter of § 371. The appointment of an individual as a diplo-
^re^enoe, ^^^^^^ euvoy is announced to the State to which he is
Pass^"^^' 9,ccredited in certain oflScial papers to be handed in by
ports. the envoy to the receiving State. Letter of Credence
{lettre de creance) is the designation of the document in
which the head of the State accredits a permanent
ambassador or minister to a foreign State. Every such
envoy receives a sealed letter of credence, and an open
copy. As soon as he arrives ab his destination, he sends
the copy to the Foreign Office in order to make his
arrival known. The sealed original, however, is handed
personally by the envoy to the head of the State to
whom he is accredited. Charges d'affaires receive a
letter of credence too, but as they are accredited from
Foreign Office to Foreign Office, their letter of credence
is signed, not by the head of their home State, but by
its Foreign Office. Now a permanent diplomatic envoy
needs no other empowering docimient if he is not en-
trusted with any task outside the limits of the ordinary
business of a permanent legation. But in case he is
entrusted with any such task, as, for instance, if any
special treaty or convention is to be negotiated, he
requires a special empowering document — ^namely, so-
called Full Powers {pleins pouvoirs). These are given
in letters patent signed by the head of the State, and
they are either limited or unlimited full powers, accord-
ing to the requirements of the case. Such diplomatic
envoys as are sent, not to represent their home State
permanently, but on an extraordinary mission such as
representation at a congress, negotiation of a special
treaty, and other transactions, receive fuU powers only,
and no letter of credence. Every permanent or other
diplomatic envoy is also furnished with so-caUed In-
APPOINTMENT OP DIPLOMATIC ENVOYS 551
structions for the guidance of his conduct as regards
the objects of his mission. But such instructions are
a matter between the envoy and his home State exclu-
sively, and therefore, although they may otherwise be
very important, they have no importance for Inter-
national Law. Lastly, every permanent diplomatic
envoy receives passpcMis for himself and his suite,
specially made out by the Foreign Office. These pass-
ports he deposits after his arrival at the Foreign Office
of the State to which he is accredited, where they remain
until he himseU asks for them because he desires to
leave his post, or until they are returned to him on his
dismissal.
§ 372. Afi a rule, a State appoints difierent individuals Combined
as permanent diplomatic envoys to difierent States ; tions!
but sometimes a State appoints the same individual as
permanent diplomatic envoy to several States. More-
over, as a rule, a diplomatic envoy represents one State
only. But occasionally several States appoint the same
individual as their envoy, so that one envoy represents
several States.
§ 373. In former times States used frequently ^ to Appoint-
appoint more than one permanent diplomatic envoy as several
their representative in a foreign State. Although this Envoys,
would hardly occur nowadays, there is no rule against
such a possibihty. And even now it happens frequently
that States appoint several envoys for the purpose of
representing them at congresses and conferences. In
such cases one of the several envoys is appointed senior,
and the others are subordinate to him.
' See MirusB, op. cit., i. §§ 117-119.
552
DIPLOMATIC ENVOYS
matic
Envoys.
RECEPTION OF DIPLOMATIC ENVOYS
Vattel, iv. §§ 65-67— Hall, § 98— Phillimore, ii. §§ 133-139— Twiss, i. ^ 202-
203— Taylor, §§ 285-290— Moore, iv. §§ 635, 637-638— Hershey, Nos.
259 and 266— Martens, ii. § 8— Calvo, iii. §§ 1353-1356— Pradier-Fod&«,
iii. §§ 1253-1260— Fiore, ii. Nos, 1118-1120, 1124— Bivier, i. pp. 455-
457— Nys, ii. pp. 400-402— Satow, Diplomatic Practice, i. §§ 243-282.
Duty to § 374. Every member of the Family of Nations that
m'pi^^ possesses the passive right of legation is, under ordinary
circumstances, bound to receive diplomatic envoys
accredited to itseK from other States for the purpose of
negotiation. But this duty extends neither to the
reception of permanent envoys, nor to the reception of
temporary envoys under aU circumstances.
(1) As regards permanent envoys, it is generally
recognised that a State is as httle bound to receive
them as it is to send them. In practice, however, every
full sovereign State which desires its voice to be heard
among the States receives, and sends, permanent envoys,
as without such it would, under present circumstances,
be impossible for a State to have any influenc-e what-
ever in international afiairs. It is for this reason that
Switzerland, which in former times abstained entirely
from sending permanent envoys, has abandoned her
former practice, and nowadays sends, and receives,
several. The insignificant PrincipaUty of lichtenstein
is, as far as I know, the only full sovereign State which
neither sends nor receives one single permanent legation.
But a State may receive a permanent legation from
one State, and refuse to do so from another. Thus,
the Protestant States never received a permanent lega-
tion from the Popes, even when the latter were heads
of a State, and they stiU observe this rule, although some
keep a permanent legation at the Vatican.
RECEPTION OF DIPLOMATIC ENVOYS 553
(2) As regards temporary envoys, it is likewise gene-
rally recognised among those writers who assert the
duty of a State to receive temporary envoys under
ordinary circumstances that there are exceptions to
that rule. Thus, for example, a State which knows
beforehand the object of a mission, and does not wish
to negotiate thereon, can refuse to receive the mission.
Thus, further, a belligerent can refuse^ to receive a
lotion from the other belligerent, as war involves the
rupture of all peaceable relations.
§ 375. But the refusal to receive an envoy must not Befnsai to
be confounded with the refusal to receive a certain indi- ^^ *
vidua] as envoy. A State may be ready to receive a im-
permanent or temporary envoy, but may object to the
individual selected for that purpose. International
Law gives no right to a State to insist upon the recep-
tion of an individual appointed by it as diplomatic
envoy. Every State can refuse to receive as envoy a
person objectionable to itself. And a State refusing
an individual envoy is neither compelled to specify
what Idnd of objection it has, nor to justify its objec-
tion. Thus, for example, most States refuse to receive
one of their own subjects as an envoy from a foreign
State.* Thus, again, the King of Hanover refused in
1847 to receive Count von Westphalen as minister from
Prussia, because he was of the Roman Cathohc faith.
Italy refused in 1885 to receive Mr. Keiley as ambas-
But this is not generally reeog- ment as a secretary to its embassT,
niaed. See Vatbel, iv. § 67 ; Philli- and reoeiTed by Great Britain in that
niore, ii. § 138 ; and Pradier-Fod6r6, capacity, without an express condi-
m. No. 1255. tion that he should remain subject
to British jurisdiction, was exempt
In ease a State receives one of from British jurisdiction. See, how-
its own subjects as diplomatic envoy ever. Article 15 of the " R^lement
ot a foreign State, it has to grant sur les Immunity Diplomatiqnes,'
him all the privileges of such envoys, adopted in lS9d by the Institute of
including exterritoriality. Thus in International Law (JtmuaiVc-, xiv.
the case of Matartney v. QartMU, p. 244), which denies to sucb an
(1S90) 24 Q.B.D. 36S, it was decided individual exemption from jurisdic-
that a British subject accredited to tion. See also Phillimore. ii. § 135,
Oreat Britain by the Chinese Govern- Twiss, i. § 203, and Praag, No. 70.
554
DIPLOMATIC ENVOYS
sador of the United States of America, because he had,
in 1871, protested against the annexation of the Papal
States. And when the United States sent the same
gentleman as ambassador to Austria, the latter refused
him reception on the ground that his wife was said to be
a Jewess. Although, as is apparent from these examples,
no State has a right to insist upon the reception of a
certain individual as envoy, in practice States are often
offended when reception is refused. Thus, in 1832
England did not cancel for three years the appoint-
ment of Sir Stratford Canning as ambassador to Eussia,
although the latter refused reception, and the post was
practically vacant. In 1885, when, as above mentioned,
Austria refused reception to Mr. Keiley as ambassador,
the United States did not appoint another, although
Mr. Keiley resigned, and the legation was for several
years left to the care of a charge d'affaires.^ To avoid
such conflicts, many States adopt the good practice of
never appointing an individual as envoy without having
ascertained beforehand whether he would be persona
grata. And it is a customary rule of International Law
that a State which does not object to the appointment
of a certain individual, when its opinion has been asked
beforehand, is bound to receive such individual.^ The
acceptance of a proposal to appoint a certain individual
as envoy is called agreation.
Mode and § 376. In casc a State does not object to the reception
oFReXp?" of a person as diplomatic envoy accredited to itself, his
**°"- actual reception takes place as soon as he has arrived
at the place of his designation. But the mode of recep-
tion differs according to the class to which the envoy
belongs. If he be one of the first, second, or third class,
' See Moore, iv. § 638, p. 480. to an individual to whom reception
as an envoy is refused. I think the
' The question ia of interest question ought to be ansvfered in the
whether the privileges due to envoys affirmative ; see, however, Moore, iv.
must be granted on his journey home § 666, p. 668.
RECEPTION OP DIPLOMATIC ENVOYS 555
it is the duty of the head of the State to receive him
solemnly in an audience with all the usual ceremonies.
For that purpose the envoy sends a copy of his creden-
tials to the Foreign Office, which arranges for him a
special audience with the head of the State, when he
dehvers in person his sealed credentials.^ If the envoy
be a charge d'affaires only, he is received in audience
by the Secretary for Foreign Affairs, to whom he hands
his credentials. Through formal reception the envoy
becomes officially recognised, and can officially com-
mence to exercise his functions. But those of his privi-
leges (exterritoriahty and the Hke) which concern the
safety and inviolabiMty of his person must be granted
even before his official reception, as his character as
diplomatic envoy is considered to date, not from the
time of his official reception, but from the time when his
credentials were handed to him on leaving his home
State, his passports furnishing sufficient proof of his
diplomatic character.
§ 377. It must be specially observed that all these Reception
details regarding the reception of diplomatic envoys ^ con°''^
accredited to a State do not apply to the reception of gresses
^ „ and Con-
envoys sent to represent the several States at a congress ferences,
or conference, or at the seat of the League of Nations. League* of
As such envoys are not accredited to the State on whose Nations,
territory the congress or conference takes place, or the
League of Nations is established, that State has no com-
petence to refuse the reception of the appointed envoys,
and no formal and official reception of the latter by the
head of the State need take place. The appointing
States merely notify the appointment of their envoys
to the Foreign Office of the State on whose territory the
transactions take place, the envoys call upon the Foreign
Secretary after their arrival to introduce themselves,
' Details oonoerning reception of envoys are given by Twiss, i. § 215, and
Bivier, i. p. 467.
556 DIPLOMATIC ENVOYS
and they are courteously received by him. They do
not, however, hand to him their full powers, but
reserve them for the first meeting of the congress or
conference, where they produce them to one another,
or to the Secretariat of the League of Nations.
VI
FxnsrcTioNS of diplomatic envoys
Rivier, i. § 37— UUmann, § 49— Bonfils, Nos. 681-683— Pradier-Fod^ri, iii.
§§ 1346-1376— Hershey, No. 260.
On Dipio- § 378. A distinction must be made between the func-
Funotions tions of permanent envoys and those of envoys for
in
general.
temporary purposes. The functions of the latter, who
are either envoys ceremonial or envoys pohtical only
temporarily accredited for the purpose of some definite
negotiations, or as representatives at congresses and
conferences, are clearly demonstrated by the very
purpose of their appointment. But the functions of
the permanent envoys demand closer consideration.
Their regular functions may be grouped together under
the heads of negotiation,^ observation, and protection.
But besides these regular functions, a diplomatic envoy
may be charged with other and more miscellaneous
functions.
Negotia- § 379. A permanent ambassador or other envoy repre-
sents his home State in the totality of its international
relations, not only with the State to which he is accredited
but also with other States. He is the mouthpiece of
the head of his home State and its Foreign Secretary,
as regards communications to be made to the State to
* Negotiation is here used in the sense it comprises only such inter-
wider sense of the term, comprising course between States as is directed
everydiploraatiooommunioationfrom towards securing an understanding,
one State to another. In its narrower See below, § 477.
tion.
FUNCTIONS OP DIPLOMATIC ENVOYS 557
which he is accredited. He likewise receives communi-
catioDS from the latter, and reports them to his home
State. In this way, not only are international relations
between these two States fostered and negotiated, but
also such international affairs of other States as are of
general interest to all, or a part of, the members of the
Family of Nations are discussed. Owing to the fact
that all the more important Powers keep pennanent
legations accredited to one another, a constant exchange
of views in regard to affairs international is taking place
between them.
§ 380. But these are not all the functions of per- observa-
loanent diplomatic envoys. Their task is, further, to*'""'
observe attentively every occurrence which might affect
the interest of their home States, and to report such
observations to their Governments. It is through these
reports that every member of the Family of Nations
is kept well informed in regard to the army and navy,
the fbaances, the pubHc opinion, and the commerce and
industry of foreign countries. And it must be specially
observed that no State that receives diplomatic envoys
has a right to prevent them from exercising their
function of observation.
§ 381. A third task of diplomatic envoys is the pro- Proteo-
tection of the persons, property, and interests of such
subjects of their home States as are within the boim-
daries of the State to which they are accredited. If
such subjects are wronged without being able to find
redress in the ordinary way of justice, and if they ask
help of the diplomatic envoy of their home State, he
must be allowed to afford them protection. It is, how-
ever, for the Municipal Law and regulations of his home
State, and not for International Law, to prescribe the
limits within which an envoy has to afford protection
to his compatriots.
§382. Negotiation, observation, and protection are
558
DIPL031ATIC ENVOYS
Miacei- tasks common to all diplomatic envovs of every State.
Ftmc- But a State may order its permanent envoys to perform
tioos.
other tasks, such as the r^btration of deaths, births,
and marriages of subjects of the home State, legaEsa-
tion of their signatures, issue of passportB for than,
and the hke. But ia doing this, a State must be carefol
not to order its envoys to perform tasks which are by
the law of the receiving State exclusively reserved to
its own officials. Thus, for instance, a State whtKe
laws compel persons who intend marriage to conclude it
in the pr^ence of its registrars, need not aUow a f ordgn
envoy to legaUse a marriage of compatriots before its
r^isttation by the official registrar. So, too, a State
need not allow a foreign envoy to perform an act which
is reserved for its jurisdiction, as, for instance, the
examination of witnesses on oath.
Envoys § 383. But it must be specialty emphasiBed that
interfere ^ivoys must not interfere with the internal poKtical
^^ life of the State to which they are accredited. It cer-
PoHtica. tainly belongs to their func-tions to watch political
events and poUtical parties with a vigilant eve, and to
report their observations to their home States. But
they have no right whatever to take part in that poh-
tical hfe, to encourage one political party, or to threaten
another. If they do so, they abuse their position. And
it matters not whether an envoy acts thus on his own
account, or on instrnctions from his home State. No
strong self-respecting State will allow a foreign envoy
to exercise such interference, but will either request hk
home State to re<all him and appoint another individual
in his place, or, in case his interference is very flagrant,
hand him his passports and therewith dismiss him.
History records many instances of this kind,^ aithou^
' See Hall (S 98"), Tiylor < § 322), pasports in 1888 fnm die Cnited
and Moore (It. § 640), who disenss a States of Amoica for an alidad
maaber d cases, mpnmXW that d interference in tie preaifential
Lotd SackriBe, who reoeiTed hia electioii.
POSITION OF DIPLOMATIC ENVOYS 559
in many cases it is doubtful whether the envoy con-
cerned really abused his o£&ce for the purpose of inter-
feiing with internal poKtics,
VII
POSITION OF DIPLOMATIC ENVOYS
§ 384. Diplomatic envoys are just as little subjects Dipio-
of International Law as are heads of States ; and the Envoys
arguments used regarding the position of such heads ^ objects of
must ako be apphed to the position of diplomatic envoys, national
This position is given to them by International Law, not ^'
as individuals, but as representative agents of their
States. It is derived, not from personal rights, but from
rights and duties of their home States and the receiving
States. All the privileges which, according to Inter-
national Law, are possessed by diplomatic envoys are
not rights given to them by International Law, but
rights given by the Municipal Law of the receiving States
in comphance with an international right belonging to
their home States. For International Law gives a right
to every State to demand for its diplomatic envoys cer-
tain privileges from the Municipal Law of a foreign State.
Thus, a diplomatic envoy is not a subject, but an object
of International Law, and is, in this regard, like any
other individual.
§ 385. Privileges due to diplomatic envoys, apart Privileges
from ceremonial honours, have reference to their in- iMpio.
violabUity and to their so-called exterritoriahty. The S*^°
reasons why these privileges must be granted are that
diplomatic envoys are representatives of States and of
their dignity,^ and, further, that they could not exercise
their functions perfectly unless they enjoyed such
' See above, § 344. * See above, § 121.
560
DIPLOMATIC ENVOYS
privileges. For it is obvious that, were they liable to
ordinary legal and pohtical interference like other
individuals, and thus more or less dependent on the good-
will of the Government, they might be influenced by
personal considerations of safety and comfort to a degree
which would materially hamper them in the exercise
of their functions. It is equally clear that if their fuU
and free intercourse with their home States through
letters, telegrams, and couriers were liable to interfer-
ence, the objects of their mission could not be fulfilled.
In this case it would be impossible for them to send
independent and secret reports to, or receive similar
instructions from, their home States. From the con-
sideration of these, and various cognate reasons, their
privileges seem to be inseparable attributes of the
very existence of diplomatic envoys.^
VIII
INVIOLABILITY OF DIPLOMATIC ENVOYS
Grotius, ii. c. 18, § 4— Vattel, iv. §§ 80-107— HaU, §§ 50, 98*— Phillimore,
ii. §§ 154-175— Twias, i. §§ 216-217— Moore, iv. §§ 657-659— Hershey,
Nog. 271-274— Ullmann, § 50— Geffoken in Hdtzendorff, iii. pp. 648-653
— Rivier, i. § 38— Nys, ii. pp. 425-428— Bonfils, Nos. 684-699- Pradier-
_Fod6r6, iii. §§ 1382-1393— Mdrignhao, ii. pp. 264-273— Fiore, ii. Noa.
1127-1143— Calvo, iii. §§ 1480-1498— Martens, ii. § 11— Crouzet, Dt
I'InviolahttM . . . des Agents difdomatiques (1875) — Praag, No. 205 —
Satow, Diplomatic Practice, i. §§ 279-311.
Proteo- § 386. Diplomatic envoys are just as sacrosanct as
toDipio- heads of States. They must, therefore, be afforded
™*'*'° special protection as regards the safety of their persons,
and be exempted from every kind of criminal juris-
diction by the receiving States. The protection due
to diplomatic envoys must find its expression, not
^ The Institute of International diplomatic envoys, and drafted a
Law, at its meeting at Cambridge body of seventeen rules in regard
in 1895, discussed the privileges of thereto ; see Annuaire, xiv. p. ^0.
INVIOLABILITY OF DIPLOMATIC ENVOYS 561
only in liie necessaxy police measures for the preven-
tion of offences, but also in specially severe punish-
ments for offenders. Thus, according to English
Gnnunal Law,^ every one is guilty of a misdemeanour
who, by force or personal restraint, violates any
privil^e (inferred upon the diplomatic repr^entatdves
of foreign countries, or who sets ^ forth or prosecute
or executes any writ or process whereby the person of
any diplomatic representative of a foreign country,
or the person of a servant of any such representative,
is arrested or imprisoned. The protection of diplo-
matic envoys is not restricted to their own person,
but must be extended to the members of their family
and suite, to their official r^dence, their furniture,
carriages, papers, and likewise to their intercourse with
their home States by letters, telegrams, and special
messeogers. Even after a diplomatic mission has come
to an end, the archives of an embassy must not be
touched, provided they have been put under seal and
conffded to the protection of another envoy .^
§ 387. As regards the exemption of diplomatic envoys Exemp-
from crimiaal jurisdiction, the theory and practice of c^un^
International Law agree nowadays * that the receiving ^^^°'
States have no right, xmder any circumstances whatever,
to prosecute and punish diplomatic envoys. But among
writers on International Law the question is not settled
whether the commands and injunctions of the laws of
the receiving States concern diplomatic envoys at all,
so tiiat they must comply with them, although it is
admitted that they can never be prosecuted and punished
' See Sii^hen's Digest, Articles of the existing law in England, and
96-97. not as creating new law.
«JJt.^*i'.lf"^^li>'^in ?^ ' See aboTO, § 106 (case of Mon-
natute, wiach was pa^ m 1 ,08 <„^) ^^ ^^ g ^^
in consequence of tie Russian -» »» . ^ •
ambassador in London haring been ' In former times there was no
uiested for a debt of £300, has nnanimity amongst publicists. See
■Ivsjsbeenconsideiedasdeclaiatory PhiUimore, ii. § 156.
VOL. I. 2n
562
DIPLOMATIC ENVOYS
for any breach. ^ This question ought to be decided in
the negative, for a diplomatic envoy must in no respect
be considered to be under the legal authority of the
receiving State. But this does not mean that a diplo-
matic envoy must have a right to do what he hkes.
The presupposition of the privileges he enjoys is that
he acts and behaves in such a manner as harmonises
with the internal order of the receiving State. He is
therefore expected voluntarily to comply with all such
commands and injunctions of the Municipal Law as
do not restrict him in the effective exercise of his func-
tions. In case he acts and behaves otherwise, and
disturbs the internal order of the State, the latter will
certainly request his recall, or send him back at once.
History records many cases of diplomatic envoys who
have conspired against the receiving States, but have
nevertheless not been prosecuted. Thus, in 1584, the
Spanish ambassador in England, Mendoza, plotted to
depose Queen EUzabeth ; he was ordered to leave the
country. In 1587 the French ambassador in England,
L'Aubespine, conspired against the life of Queen Eliza-
beth ; he was simply warned not to commit a similar
act again. In 1654 the French ambassador in England,
De Bass, conspired against the life of Cromwell ; he was
ordered to leave the country within twenty-four hours.^
Limita- § 388. As diplomatic envoys are sacrosanct, the prin-
invioia- ciple of their inviolabihty is generally recognised. But
biuty. tiiere is one exception. For if a diplomatic envoy
commits an act of violence which disturbs the internal
order of the receiving State in such a manner as makes
it necessary to put him under restraint for the purpose
of preventing similar acts, or if he conspires against
the receiving State and the conspiracy can be made
* The point is thoroughly dis- litdt (1896), pp. 71-90.
cussed by Beling, Die strafrecht- ' These and other cases are dis-
liche Bedeuiung der Exterritoria- cussed by Phillimore, ii. §§ 160-165.
INVIOLABILITY OF DIPLOMATIC ENVOYS 563
futile only by putting him under restraint, he may be
anested for the time being, although he must in due
time be safely sent home. Thus in 1717 the Swedish
ambassador, Gyllenburg, in London, who was an accom-
phce in a plot against King George i., was arrested,
and his papers were searched. In 1718 the Spanish
ambassador in France, Prince CeUamare, was placed in
custody, because he organised a conspiracy against the
French Government.^ It must be emphasised that a
diplomatic envoy cannot complain if he is injured in
consequence of his own unjustifiable behaviour, as
for instance in attacking an individual who in self-
defence retaliates, or in unreasonably or wilfully placing
himself in dangerous or awkward positions, such as in
a disorderly crowd.^
IX
EXTEBRirORTALTTY OF DIPLOMATIC ENVOYS
Grotias, u. c 18, ^ 9 and 10— Vattel, iv. ^ 80-119— Hall, ^ 50, 52, 53—
WestJake, i. pp. 273-283— Phillimore, ii. ^ 176-210— Taylor, ^ 299-315
— Twiss, i. ^ 217-^1— Moore, ii. §§291-304, and iv. §§ 660-669— Herahey,
Nos. 270 and 275-280— Ullmann, § 50— G«ffoken in HoUzendorff, iii.
pp. 654^659— Nys, ii. pp. 406-433— Rivier, i. § 38— Bonfils, Nos. 700-
721— Pradier-Fod6rt, iil §§ 1396-1495— Mfaignhac, ii. pp. 249-294—
Fiore, ii. Nos. 1145-1163— Calvo, iii. §§ 1499-1531— Martens, ii. §§ 12-
14^-6ottschaIck, IHe ExterrUorialitat dor Oesandten (1878)— Heyking,
L'EcterritorialM (1889)— Odier, Bet Privileges et ImmtmiUs dea Agents
diplomatique* (1890) — Vercamer, Des Franchises diplcmaiiques et tpidale-
metU de I' Exterritorialite (1891) — Dioin, Ii'Exterritoriaiite des Agents
d^>lomatiques (1895) — Mirre, Die SteUvmg der volkerrechUichen Literatur
zur Lehre von den sogenannten Nebenrechten der gesandschafUiehen
Funktiondre (1904) — Ozanam, L'Immunite civile de Jurisdiction de* Agents
d^pUmatiques (1912)— Fraag, Nos. 49-68, 163, and 203-226— Satow,
Diplomatic Practice, i. §g 312-347.
§ 389. The exterritoriality which must be granted
to diplomatic envoys by the Municipal Laws of all the
' Details legarding these eases are ing diplomatic unmnnities adopted
given by Phillimore, ii. §§ 166 and by the Institute of International Law
170. at its meetang at Cambridge in 1895
* See Article 6 of the roles regard- (Amuiaire, liv. p. 241).
564
DIPLOMATIC ENVOYS
Reason members of the Family of Nations is not, as in the
tkinai'° case of sovereign heads of States, based on the principle
G^^^°^^ par in parem non habet imperium, but on the necessity
ritoriai- that envoys must, for the purpose of fulfilling their
^ ^' duties, be independent of the jurisdiction, the control,
and the hke, of the receiving States. Exterritoriahty,
in this as in every other case, is a fiction ^ only, for
diplomatic envoys are in reaUty not without, but
within, the territories of the receiving States. The
term ' Exterritoriahty ' is nevertheless valuable,
because it demonstrates clearly the fact that envoys
must, in most respects, be treated as though they
were not within the territory of the receiving States.^
The so-called exterritoriahty of envoys takes practical
form in a body of privileges which must be severally
discussed.
Immunity § 390. The first of thesc privileges is immunity of
ciie."™^ domicile, the so-called FraTwhise de I'hotd. The present
imniunity of domicile has developed from the former
condition of things, when the official residences of envoys
were in every respect considered to be outside the terri-
tory of the receiving States, and when this exterri-
toriahty was, in many cases, even extended to the whole
quarter of the town in which such a residence was
situated. One used then to speak of the Franchise du
quartier or the Jus quarteriorum. And an inference
from this Franchise du quartier was the so-called right
of asylum, envoys claiming the right to grant asylum,
within the boundaries of their residential quarters, to
every individual who took refuge there.^ But aheady
' See Praag, Nos. 49-54. States in former centuries, it is of
^ With a few exceptions (see '°*,«™^* *° "^P}^ that Grotius did
Droin, L'ExterrUoriaiM des Agent, "°*. "o^f der it postulated by Inter-
diplomatiques (1895), pp. 32-43), ".^*'°°*! ^^^' ^°J^ J"^ ?^^ °^ *>"=
all publicists accept the term and PS'^* <"• °V ^^: § ») : ' Ex concess-
the fiction of exterritoriaUty. i°?^ ^^"^ • ^^"^ ^^IJ? "l"^™ "'^i*-,
Istud emm juris gentium non est.
' Although this right of asylum See also Bynkershoek, De Foro
was certainly recognised by the Legatorum, c. 21.
EXTEERITOEIALITY OF DIPLOMATIC ENVOYS 565
in the seventeenth century most States opposed this
Franchise du quartier, and it totally disappeared in the
eighteenth century, leaving behind, however, the claim
of envoys to grant asylum within their official resi-
dences. Thus, when in 1726 the Duke of Ripperda, first
minister to Phihp v. of Spain, who was accused of high
treason and had taken refuge in the residence of the
Enghsh ambassador in Madrid, was forcibly arrested
there by order of the Spanish Government, the British
Grovernment complained of this act as a violation of
International Law.^ Twenty-one years later, in 1747,
a similar case occuixed in Sweden, A merchant named
Springer was- accused of high treason, and took refuge
in the house of the English ambassador at Stockholm.
On the refusal of the Enghsh envoy to surrender Springer,
the Swedish Government surrounded the embassy with
troops, and ordered the carriage of the envoy, when
leaving the embassy, to be followed by mounted soldiers.
At last Springer was handed over to the Swedish Govern-
ment under protest, but England complained and re-
called her ambassador, as Sweden refused to make
the required reparation.^ As these two examples
show, the right of asylum, although claimed and
often conceded, was nevertheless not universally re-
cognised. D\iring the nineteenth century all remains
of it vanished, and when in 1867 the French envoy in
Lima claimed it, the Peruvian Government refused to
concede it,^
' See Martens, Causes cdlihrea, Westlake, i. p. 282 ; Moore, ii. §§
i. p. 178. 291-304 ; Gilbert in A.J., iii. (1909),
* See Martens, Causes ciUhres, pp. 562-595 ; Robin in R.O., xv.
ii. p. 52. (1908), pp. 461-508; Soelle in R.G.,
' The South American States, xix. (1912), pp. 623-634 ; Moore,
Peru excepted, still grant to foreign Asylum in Legations and Gonsulatea,
envoys the right to aflford asylum to and in Vessels (1^92) (a reprint from
political refugees in time of rerolu- the Political Science Qua/rterly, vol.
tion. It is, however, acknowledged vii.); Tobar y Borgono, L'Asile
that this right is not based upon a interne devant le Droit international
rule of International Law, but merely (1912). That in practice in times
upon local usage. See Hall, § 52; of revolution and of persecution of
566
DIPLOMATIC ENVOYS
Nowadays the official residences of envoys are, in a
sense and in some respects only, considered as though they
were outside the territory of the receiving States. For
the inununity of domicile granted to diplomatic envoys
comprises the inaccessibility of these residences to
officers of justice, pohce, or revenue, and the hke, of
the receiving States without the special consent of the
respective envoys.^ Therefore, no act of jurisdiction or
administration of the receiving Governments can take
place within these residences, except by special permis-
sion of the envoys. And the stables and carriages of
envoys are considered to be parts of their residences.
But such immunity of domicile is granted only in so far
as it is necessary for the independence and inviolability
of envoys, and the inviolability of their official docu-
ments and archives. If an envoy abuses this inununity,
the receiving Government need not bear it passively.
There is, therefore, no obhgation on the part of the
receiving State to grant an envoy the right of affording
asylum to criminals, or to other individuals not belong-
ing to his suite. Of course, an envoy need not deny
entrance to criminals who want to take refuge in the
embassy. But he must surrender them to the prosecut-
ing Government at its request, and if he refuses, any
measures may be taken to induce him to do so, apart
from such as would involve an attack on his person.
Thus, the embassy may be surrounded by soldiers, and
certain classes of the population envoy, if the property of his home
asylum is occasionally granted to State, be confiscated after his de-
refugees, and respected by the local parture by the State on the territory
authorities, there is no doubt ; but of which it is situated as a measure
this occasional practice does not of reprisals? During the World War,
shake the validity of the general rule on August 25, 1916, the Italian
of International Law, according to Government confiscated the Palais
which there is no obligation on the de Venice in Rome, which was the
part of the receiving State to grant to seat of the Austrian Legation at the
envoys the right of aflfording asylum Holy See, as a measure of reprisals
to individuals not belonging to their against the bombardment of Venice
suites. See, however, Moore, ii. by Austrian aircraft. See Soelle in
§ 293. R.O., xxiv. (1917), pp. 244-255, and
' Can the official residence of an below, vol. ii. § 247.
EXTERRITOEIALITY OF DIPLOMATIC ENVOYS 667
eventually the criminal may even forcibly be taken out
of the embassy. But such measures of force are justi-
fiable only if the case is an urgent one, and after the
envoy has in vain been required to surrender the
criminal. Further, if a crime is committed inside the
house of an envoy by an individual who does not enjoy
personally the privilege of exterritoriality, the criminal
must be surrendered to the local Government. The
case of Nikitschenkow, which occurred in Paris in 1867,
is an instance thereof. Nikitschenkow, a Russian
subject not belonging to the Russian legation, made W
attempt on, and wounded, a member of that legation
within the precincts of the embassy. The French pohce
were called in, and arrested the criminal. The Russian
Government required his extradition, maintaining that,
as the crime was committed inside the Russian embassy,
it fell exclusively under Russian jurisdiction ; but the
French Government refused extradition, and Russia
dropped her claim.
Again, an envoy has no right to seize a subject of his
home State who is within the boimdaries^f the receiv-
ing State, and keep him under arrest inside the embassy
with th^ intention of bringing him away into the power
of his home State. An instance thereof is the case of
the Chinaman, Sun Yat Sen, which occurred in London
in 1896. He was a political refugee from China, hving
in London, and was induced to enter the house of the
Chinese legation and kept under arrest there in order
to be conveyed forcibly to China. The Chinese envoy
contended that, as the house of the legation was Chinese
territory, the EngUsh Government had no right to inter-
fere. But the latter did interfere, and Sun Yat Sen
was released after several days.
In contrast to this case may be mentioned that of
Kalkstein which occurred on the Continent in 1670.
Colonel von Kalkstein, a Prussian subject, had fled to
568
DIPLOMATIC ENVOYS
Poland for political reasons, since he was accused of
high treason against the Prussian Government. Now
Frederic WiUiam, the great Elector of Brandenburg,
ordered his diplomatic envoy at Warsaw, the capital
of Poland, to obtain possession of the person of Kalk-
stein. On November 28, 1670, this order was carried
out. iKalkstein was secretly seized, and, wrapped up
in a carpet, was carried across the frontier. He was
afterwards executed at Memel.
Exemp- § 391. The second privilege of envoys in reference
Crimina™ to their cxterritoriaKty is their exemption from criminal
JuriS?-' ^^^ ^^^^ jurisdiction. As their exemption from criminal
tion. jurisdiction is also a consequence of their inviolabihty,
it has already been discussed,^ and we have here only
to deal with their exemption from civil ^ jurisdiction.
No civil action of any kind as regards debts and the
like can be brought against them in the civil courts of
the receiving States. They cannot be arrested for debts,
nor can their furniture, their carriages, their horses, and
the Hke, be seized for debts. They cannot be pre-
vented from leaving the country for not having paid
their debts, nor can their passports be refused to
them on this account. Thus, when in 1772 the French
Government refused passports to Baron de Wrech,
the envoy of the Landgrave of Hesse-Cassel at Paris,
for not having paid his debts, all the other envoys in
Paris complained of this act of the French Gtovem-
ment as a violation of International Law.^ But the
rule that an envoy is exempt from civil jurisdiction
has certain exceptions. If an envoy enters an appear-
ance to an action against himseK, or if he himself brings
an action imder the jurisdiction of the receiving State,
the courts of the latter in such cases have civil juris-
• See above, §§ 387-388. ' See Martens, Causes cMihres, a.
* See Ozanam, op. cit., pp. 110- p. 282.
188.
EXTERRITORIALITY OF DIPLOMATIC ENVOYS 569
diction over him. And the same is valid as regards
real property held within the boundaries of the receiv-
ing State by an envoy, not in his ofl&cial character,
but as a private individual, and as regards mercantile ^
ventures in which he might engage on th.e territory of
the receiving State. But although in these cases the
local courts may exercise jurisdiction over him, their
judgments cannot be enforced if he refuses to comply
with them, because no force can be applied against an
envoy. ^
§ 392. The third privilege of envoys in reference to Exemp-
their exterritoriality is exemption from subpoena as subp^nT
witnesses. No envoy can be obMged, or even required, *gg^g*'
to appear as a witness in a civil or criminal or adminis-
trative court, nor is an envoy obliged to give evidence
before a commissioner sent to his house. A remark-
able case of this kind is that of the Dutch envoy, Dubois,
in Washington, which happened in 1856. A case of
homicide occurred in the presence of M. Dubois, and
as his evidence was absolutely necessary for the trial,
the Foreign Secretary of the United States asked Dubois
to appear before the court as a witness, recognising the
fact that Dubois had no duty to do so. When Dubois,
on the advice of all the other diplomatic envoys in
Washington, refused to comply with this desire, the
United States brought the matter before the Dutch
; Government. The latter approved of Dubois' refusal,
> but authorised him to give evidence under oath before
the American Foreign Secretary. As, however, such
evidence would have had no value at all according to the
' The statute of 7 Anne, o. 12, on looal jurisdiotion ; see the case of
which the exemption of diplomatic Magdalena Steam Navigation Oo. v.
envoyB from English jurisdiction is Martin, (18S9) 2 E. and E. 94, over-
based, does not exclude such envoy ruling the case of Taylor v. Beat,
as embarks on mercantile ventures (1854) 14 C.B. 487. See also West-
from the benefit of the Act, and lake, i. 277, and Praag, Nos. 85-87.
the practice of the English courts ^ See In re Francisco Suarez,
grants, therefore, to foreign envoys Sua/rez v. Suarez, [1917] 2 Ch. 131 ;
even in such oases exemption from [1918] 1 Oh. 176.
o70
DIPLOMATIC ENVOYS
local law, Dubois' evidence was not taken, and the
Government of the United States asked the Dutch
Government to recall him.^
Although an envoy cannot be compelled to give evi-
dence, if he chooses for himself to appear as a witness,
the courts can make use of his evidence. Thus in 1881,
at the trial of Guiteau for the murder of President
Garfield, the Venezuelan envoy, Senor Comancho, who
was present, when the crime was committed, appeared
as a witness for the prosecution, the Venezuelan Govern-
ment haAdng authorised him to do so.^
Exemp- § 393, The fourth privilege of envoys in reference to
Police, their exterritoriahty is exemption from the pohce of
the receiving States. Orders and regulations of the
poMce do not in any way bind them. On the other hand,
this exemption from pohce does not carry with it any
privilege for an envoy to do what he Ukes as regards
matters which are regulated by the police. Although
such regulations can in no way bind him, an envoy enjoys
the privilege of exemption from police imder the pre-
supposition that he acts and behaves in such a manner
as harmonises with the internal order of the receiving
State. He is, therefore, expected to comply voluntarily
with all such conamands and injunctions of the local
police as, on the one hand, do not restrict him in the
efiective exercise of his duties, and, on the other hand,
are of importance for the general order and safety of
the community. Of course, he cannot be punished if
he acts otherwise, but the receiving G<5vernment may
request his recall, or even be justified in taking other
measures of such a kind as do not injure his inviolabihty.
Thus, for instance, if, in time of plague, an envoy were
not volimtarily to comply with important sanitary
arrangements made by the local pohce, and if there were
1 See Wharton, i. § 98 ; Moore, iv. § 662 ; and Calvo, iii. § 1520.
^ See Moore, iv. § 662.
EXTERRITORIALITY OF DIPLOMATIC ENVOYS 571
great danger in delay, a case of necessity would be
created, and the receiving Government would be justified
in the exercise of reasonable pressure upon the envoy.
§ 394. The fifth privilege of envoys in reference to Exemp-
their exterritoriahty is exemption from taxes and the Taxes'^aM
Uke. As an envoy, through his exterritoriahty, is con- ^^^ ^'''®-
sidered not to be subject to the territorial supremacy of
the receiving State, he must be exempt from all direct
personal taxation, and, therefore, need not pay either ^
income-tax or other direct taxes. As regards rates, it \
is necessary to draw a distinction. Payment of rates \
imposed for local objects from which an envoy himself
derives benefit, such as sewerage, hghting, water, night-
watch, and the Kke, can be required of the envoy,
although often -"^ this is not done. Other rates, however,
such as poor-rates and the Uke, he cannot be requested
to pay. As regards customs duties. International Law
does not claim the exemption of envoys therefrom. In
practice, and by courtesy, however, the Municipal Laws
of many States allow diplomatic envoys, within certain
limits, to receive free of duty goods intended for their
own private use. If the house of an envoy is the pro- /
party of his home State, or his own property, the house
need not be exempt from property tax, although it is
often so by the courtesy of the receiving State. Such
property tax is not a personal and direct, but an in-
direct tax.
§ 395. A sixth privilege of envoys in reference to Right of
their exterritoriahty is the so-called Right of Chapel ^'^^'
{ckoit de ckapelle or droit du culte). This is the privi-
lege of having a private chapel for the practice of his
own rehgion, which must be granted to an envoy by
the Municipal Law of the receiving State. A privilege
^ As, for instance, in England i'ar^iM«07i v. PoHer, (1885) 16 Q.B.D.
where the payment of local rates 152, and-Jfopowtoey v. GarfciiW, (1890)
cannot be enforced by suit or distress 24 Q.B.D. 368. See also Westlake,
against a member of a legation ; see i. p. 278.
572
DIPLOMATIC ENVOYS
of great worth in former times, when freedom of reU-
gious worship was unknown in jnost States, it has at
present a historical value only. But it has not dis-
appeared, and flight become again of practical import-
ance in case a State should in the future give way to
reactionary intolerance. It must, however, be emphasised
that the right of chapel need only comprise the privi-
lege of rehgious worship in a private chapel inside the
official residence of the envoy. No right of having and
tolhng bells need be granted. The privilege includes
the office of a chaplain, who must be allowed to perform
every rehgious ceremony within the chapel, such as
baptism and the like. It further includes permission
to all the compatriots of the envoy, even if they do not
belong to his retinue, to take part in the service. Biit
the receiving State need not allow its own subjects to
take part therein.
Seif-juris- § 396. The seventh and last privilege of envoys in
reference to their exterritoriality is self -jurisdiction
within certain hmits. As the members of an envoy's
retinue are considered exterritorial, the receiving State
has no jurisdiction over them, and the home State may
therefore delegate civil and criminal jurisdiction to the
envoy. But no receiving State is required to grant
self-jurisdiction to an ambassador beyond a certain
reasonable limit. Thus, an envoy must have jurisdic-
tion over his retinue in matters of discipline, he must be
able to order the arrest of a member of his retinue who
has coromitted a crime and is to be sent home for his
trial, and the hke. But no civilised State would nowa-
days allow an envoy himself to try a member of his
retinue. This was done in former centuries, as the
following case proves : The Due de Sully, then Marquis
de Eosny, was sent in 1603 by Henri iv. of France on a
special mission to England, as a ceremonial envoy to
congratulate James i. upon his accession to the throne.
THEIE POSITION AS REGARDS THIRD STATES 573
On the very day of his arrival, some members of his
retiaue fell into a brawl with some Enghshmen, and
one of the latter was killed. SuUy had the murderer
seized, and called together a jury of some Frenchmen who
had accompanied him to London. This jury condemned
the culprit to death for murder, and he was handed over
to the Mayor of London to be executed. However, the
Count of Beaumont-Harley, the permanent French
ambassador in London, obtained from James i. a pardon
for the convicted man.^
X
POSITION OF DIPLOMATIC ENVOYS AS REGARDS
THIRD STATES
Grotius, ii. o. 18, § 5— Vattel, iv. §§ 84-86— Hall, §§ 99-101— Phillimore, ii.
§§ 172-175— Taylor, §§ 293-295— Moore, iv. §§ 643-644— Twiss, i. § 222—
Hershey, No. 272— Wheaton, §§ 244-247— UUmann, § 52— GeiToken in
HoUzendorff, iii. pp. 665-668— Heffter, § 207— Rivier, i. § 39— Nys, ii.
p. 445— Pradier-Fod6r6, iii. § 1394— Fiore, ii. Nos. 1143-1144— Calvo,
iii. §^ 1532-1539— Praag, No. 227— Satow, Diplomatic Practice, i.
§§ 348-367.
§ 397. Although, when an individual is accredited Possible
as diplomatic envoy by one State to another, these two ^^^^'
States alone are directly concerned in his appoint-
ment, yet the position of an envoy must be considered ■
ia those cases in which he comes in contact with third
States. Several such cases are possible. An envoy
may travel through the territory of a third State to
reach the territory of the receiving State. Or again,
an envoy accredited to a belhgerent State and Hving on
the territory of the latter may be found there by the
other beUigerent who mihtarily occupies such territory.
' See Martens, Causes ciUhret, i. p. 331. See also the two oases reported
by Calvo, iii. § 1545.
574
DIPLOMATIC ENVOYS
Thirdly, an envoy accredited to a certain State naigh
interfere with the affairs of a third State.
Envoy § 398. If an envoy travels through the territory o
through"^ ^ third State incognito or for his pleasure only, ther
of'Third^ is no doubt that he cannot claim 2Mj special privilege
state. whatever. He is in exactly the same position as an;
other foreign individual travelling there, although b;
courtesy he might be treated with particular attention
But matters are different when an envoy, on his wa;
from his own State to the State of his destination, travel
through the territory of a third State. If the sending
and the receiving States are not neighbours, the envo;
probably has to travel through the territory of a thirt
State. Now, as the institution of legation is necessar
for the intercourse of States, and is firmly estabhshec
by International Law, there ought to be no doubt tha
such third State must grant the right of innocent passag
{jus transitus innoxii) to the envoy, provided that it i
not at war with the sending or the receiAdng State. Bu
other privileges,^ especially those of inviolabihty anc
exterritoriahty, need not be granted to the envoy
Moreover, the right of innocent passage does not includ(
the right to stop on the territory longer than is necessar]
for the passage. Thus, in 1854, Soule, the envoy of th(
United States of America at Madrid, who had landec
at Calais, intending to return to Madrid via Paris, wai
provisionally stopped at Calais for the purpose of ascer
taining whether he intended to make a stay in Paris
which the French Government wanted to prevent
because he was a French refugee naturahsed in America
and was reported to have made speeches against th
Emperor Napoleon. Soule at once left Calais, and th(
French Government declared, during the correspondenci
* The matter, which has always opinion of Grotiua, Bynkershoei
been disputed, is fully discussed by and Vattel.
TwisB, i. § 222, who also quotes the
THEIR POSITION AS REGARDS THIRD STATES 575
with the United States in the matter, that there was
no objection to Soule traversing France on his way to
Madrid, but that they would not allow him to make a
sojourn in Paris, or anywhere else in France.^
But no right of passage need be granted if the third
State is at war with the sending or receiving State. The
envoy of a belKgerent, who travels through the terri-
tory of the other beUigerent to reach the place of his
destination, may be seized and treated as a prisoner of
war. Thus, in 1744, when the French ambassador,
Marechal de Belle-Isle, on his way to Berhn, passed
through the territory of Hanover, which country was
then, together with England, at war with France, he
was made a prisoner of war and sent to England.
Again, in August 1917, after Cuba had entered the
World War as an Allied Power, Herr von Heinrichs,
formerly secretary to the German embassy at Madrid,
was arrested and made a prisoner of war when landing
at Havana from a Spanish steamer on which he was
proceeding to Mexico, where he was being transferred.
On the other hand, the envoy of a belligerent who travels
to his neutral destination on a neutral vessel may not
be forcibly removed and made a prisoner of war while
the vessel is on the open sea.^ But should the vessel
enter the territorial waters, or a port, of the other belK-
gerent, that envoy could be seized. Therefore when, in
November 1914, during the World War,Coimt Tarnowski,
the Austrian envoy to the United States, then neutral,
intended to travel from Rotterdam to America, it was
necessary to ask Great Britain for a safe-conduct. Other-
wise he could have been made a prisoner of war when
the vessel on which he was travelhng entered British
' See Wharton, i. §97, andMoore, ^Ztmco, (1889)56 N.Y. Super. Ct. 582,
iy. § 643. See also Wheaton, § 247. and in Scott, Cases on International
American practice would seem to Law, p. 206.
grant inviolability and exterritori- * See The Trent case below, vol. ii.
ality in such oases. See Wilson v. § 408 n.
576
DIPLOMATIC ENVOYS
territoml waters.^ The same procedure was necessary,
for the same reason, when in 1915 the Austrian ambas-
sador at Washington, Dr. Dmnba, and in 1917 the
German ambassador at Washington, Count BemsdorfiE,
desired to retnm to their home States.
^avas § 399. When in time of war a belligerent occupies
Beffige- the capital of an enemy State and finds there envoys of
^ip^ other States, these envoys do not lose their diplomatic
Enemy privileges as long as the State to which they are accre-
' dited is in existence. As military occupation do^ not
extLDgoish a State subjected thereto, such envoys do
not cease to be envoys. On the other hand, they are
not accredited to the belligerent who has taken posses-
sion of the territory by military force, and the question
is not yet settled in Xntemational Law how far the
occupying belligerent has to respect the iaviolabiUly
and exterritoriality granted to such envoys by the law
of the land in compliance with a demand of Inter-
national Law. It may safely be maiutained that he
must grant them the right to leave the occupied terri-
tory. But must he likewise grant them the right to
stay ? Has he to respect their immunity of domicile
and their other privileges in reference to their exterri-
toriality ? Neither customary roles nor international
conventions exist as regards these questions, which
must, therefore, be treated as open. A case arose
during the siege of Paris in 1870 by the Germans. Mr.
Washbume, United States ambassador in Paris, claimed
the right of sending a messenger with despatches to
London in a sealed bag through the German lines. But
the Germans refused to grant that right, and did not
* Similarly a member of the Enite nsval attach^ to the Oennan
of an envoy may be made a prisoner legation at Madrid, desired to
of Tar if apprehended in a third retTum to Germany by croesing
State which is at vax wiUi his kome Franoe, he had to poeses a safe-
State. Theref«He, when in Febroary oondnct from tbe Froidi Govem-
1918, dmiBg the World War, m«it. On the case of von Papal,
Osptoin Ton Krohn, the so-called eee bdow, voL u. § 218.
THE RETINUE OP DIPLOMATIC ENVOYS 577
alter their decision although the Government of the
United States protested.^
§ 400. There is no doubt that an envoy must not Envoy
interfere in matters with regard to which the State to S^oi
which he is accredited is involved with a third State. If ^f^ of
he does interfere, he enjoys no privileges whatever state,
against such third State. Thus, in 1734, the Marquis
de Monti, the French envoy in Poland, who took an
active part in the war between Poland and Kussia,
was made a prisoner of war by the Russians, and was
not released till 1736, although France protested.-
XI
THE RETINUE OP DIPLOMATIC ENVOYS
Grotiua, u. o. 18, § 8— Vattel, iv. §§ 120-124— HaU, § 51— Phillimore, ii.
§§ 186-193— Twis3, i. § 218— Moore, iv. §§ 664-665— Hershey, No. 279—
UUmann, g§ 47 and 51— Gefibken in HoUzendorff, iii. pp. 660-661—
Heffter, § 221- Rivier, i. pp. 458-461— Nys, ii. pp. 440-444— Pradier-
Fod6r6, iii. §§ 1472-1486— Kore, ii. Nos. 1164:-1168— Calvo, iii. §§ 1348-
1350 — Martens, ii. § 16 — Roederer, De VApplicaticn des Immunitea de
FAmbastadeur au Personnel de VAmbasmde (1904), pp. 22-84 — Praag,
Nos. 229-236— Satow, Diplomatic Practice, i. §§ 375-383.
§ 401. The individuals accompanying an envoy offi- Different
ciaUy, or in his private service, or as members of his of Mem-
f anuly, or as couriers, compose his retinue. The members ^j^
of the retinue belong, therefore, to four difEerent classes.
All those indi'siduab who are ofiScieilly attached to an
envoy are members of the legation, and are appointed
by the home State of the envoy. To this first class
belong the councillors, attaches, and secretaries of the
lotion ; the chancellor of the legation and his
assistants ; the interpreters, and the Kke ; the chaplain,
the doctor, and the legal advisers, provided that they
are appointed by the home State, and are sent specially
' See below, vol. ii. § 157, and • See Martens, Oaxises dUbrts,
Wharton, L § 97. i. p. 207.
VOL. I. 2o
578 DIPLOMATIC ENVOYS
as members of the legation. A list of these members
of a legation is handed by the envoy to the Secretarj
for Foreign Affairs of the receiving State, and is revised
from time to time. The councillors and secretaries
of a legation are personally presented to the Secretarj
for Foreign Affairs, and very often also to the head ol
the receiving State. The second class comprises all
those individuals who are in the private service of the
envoy, such as servants of all Icinds, the private secre-
tary-of the envoy, the tutor and the governess of his
children. The third class consists of the members of the
family of the envoy — namely, his wife, children, and
such of his other near relatives as hve within his family,
and under his roof. And, lastly, the fourth class con-
sists of the so-called couiiers. They are the bearers of
despatches sent by the envoy to his home State, who on
their way back also bear despatches from the home State
to the envoy. Such couriers are attached to most lega-
tions to guarantee the safety and secrecy of the despatches.
Privileges § 402. It is a universally recognised ^ rule of Inter-
bL^T national Law that all members of a legation are as in-
Legation. violablc and exterritorial as the envoy himself. They
must, therefore, be granted by the receiving State
exemption from criminal and civil jurisdiction, exemp-
tion from poUce,^ subpoena as witnesses, and taxes . They
' Some authors, however, plead a seoretary to the Danish legation,
for an abrogation of this rule. See The inquest neoosRary in such oases.
Martens, ii. § 16. aocording to English law, oould not
be held, beoause the Danish legation
^ A ease of this kind ooourred in claimed exemption for Sohestod as
1904 in the United States. Mr. one of its members. The body was
Gurney, Secretary to the British therefore conveyed to Copenhagen
embassy at Washington, was fined without further interference by the
by the police magistrate of Lee, in polioe. Again, when in February
Massachusetts, for furiously driving 1916 Roberto Centaro, the first
a motor-car. But the judgment was secretary to the Italian embassy in
afterwards annulled, and the fine London, committed suicide by shoot-
remitted. Another case of interest ing himself in a hotul, on the demand
occurred in London in May 1913. of the Italian ambassador, the
The body of a young man was re- coroner refrained from holding an
covered from the river Thames, and inquest, and the polioe did not
identified as that of Mogen Schested, further interfere.
THE RETINUE OF DIPLOMATIC ENVOYS 579
are considered, like the envoy himself, to retain tiieir
domicile within their home State. Children bom to
them during their stay within the receiving State are
considered as bom on tiie tendtoiy of the home State.
And it mnst be emphasised that it is not within the
envoy's power to waive these privil^es belongiDg to
members of a l^ation,^ althou^ the home State itself
can waive them. Thus when, in 1909, WOhelm Beckert,
tiie chanceUoT of the Glerman l^ation in Santiago de
Oiili, murdered the porter of this l^ation, a Chilian
subject, and then set fire to the chancery in order to
conceal his embezzlement of money belonging to the
legation, tiie Glerman Giovecnment consented to his
bdng prosecuted in Chili ; he was tried, found gtulty,
and executed at Santiago on July 5, 1910. On the
other hand, when in 1915 Giottfried Ruh, a r^istrar of
ibe Swiss l^ation in Berlin, embezzled monies en-
trusted to the l^ation, the Swiss Government asked
the German Government to arrest and extradite him
to Switzedaiul ; he was tried at B^ne in Jxme 1916,
and condemned to penal servitude.
§ 403. It is a customary rule of International Law PrmiegEs
tiiat the receiving State must grant to aU persons in ^^^^
the private service of the envoy, provided such persons
are not subjects of the receiving State, exemption from
dvil and criminal jurisdiction.* But the envoy can
disclaim these exemptions, and these persons cannot
then claim exemption from police, unmunity of domi-
cile, and exemption from taxes. Thus, for instance, if
such a private servant commits a crime outside the
* See /n re Bepmblie of Bolivia London, committed an assanlt ont-
Siplonjtiom Sjfmdiaitey IM., [1914] side the embassy, he was arrested
1 (%. 139, and Baty in tlie in the stable of the embassy and
Law Magaame amd Beaem, -rrn-r chargoi before a local magisbste,
pw 349. and the British Foreign Office re-
* This mle seems to be evei> whore fused to recognise the exemption of
recognised except in Great Britain. the coachmui frran the local jnris-
When, in 1827, a eoaebaoaa of Mr. diction. See Wharttm, i. § 94^ and
Gallatin, tiie American iwmiataf in TfaTl^ § 51.
580 DIPLOMATIC ENVOYS
residence of his employer, the police can arrest him;
he must, however, be at once released if the envoy does
not waive the exemption from criminal jurisdiction.
Privileges § 404. Although the wife of the envoy, his children,
of BnTOy^ and such of his near relatives as Uve within his family
and under his roof belong to his retinue, there is a dis-
tinction to be made as regards their privileges. His
wife must certainly be granted all his privileges in so
far as they concern inviolabihty and exterritoriahty.
As regards, however, his children and other relatives,
no other general rule of International Law can safely
be said to be generally recognised, than that they must
be granted exemption from civil and criminal jurisdic-
tion. But even this rule was formerly not generally
recognised. Thus, when in 1653 Don Pantaleon Sa, the
brother of the Portuguese ambassador in London and a
member of his suite, kiUed an Enghshman named
Greenaway, he was arrested, tried in England, found
guilty, and executed.^ Nowadays the exemption from
civil and criminal jurisdiction of such members of an
envoy's family as Uve under his roof is always granted.
Thus, when in 1906 Carlos Waddington,^ the son of the
ChiHan envoy at Brussels, murdered the secretary of
the Chilian legation, the Belgian authorities did not
take any steps to arrest him. Two days afterwards,
however, the Chihan envoy ;waived the privilege of the
immunity of his son, and on March 2 the Chihan Govern-
ment Ukewise agreed to the murderer being prosecuted in
Belgium. The trial took place in July 1907, but
Waddington was acquitted by the Belgian jury.
Privi- § 405. To ensure the safety and secrecy of the diplo-
douriers matic despatches they bear, couriers ^ must be granted
of Envoy, exemption from civil and criminal jurisdiction, and
'■ The case is dieoussed by Philli- ' See the valuable information
more, ii. § 169. ooneerning couriers in Embassiet
' See R.O., xiv. (1907), pp. amd Foreign Courts (1855), pp.
159-165. 178-199.
TERMINATION OF DIPLOMATIC MISSION 581
afforded special protection during the exercise of their
office. It is therefore usual to provide them with
special passports. It is particularly important to
observe that they must have the right of innocent
passage through third States, and that, according to
general usage, those parts of their luggage which con-
tain diplomatic despatches, and are sealed with the
official seal, must not be opened and searched.^
XII
TERMINATION OF DIPLOMATIC MISSION
Vattel, iv. §§ 125-126— Hall, § 98**— PhilUmore, ii. §§ 237-242— Moore,
iv. §§ 636, 639, 640, 666— Hershey, Nos. 267-269— Taylor, §§ 320-323—
Wheaton, §§ 250-251— Ullmann, § 53— Heffter, §§ 223-226— Rivier, i.
§ 40— Nys, ii. p. 447-449— Bonfils, Nos. 730-732— Pradier-Fod6r6, iii.
§§ 1515-1535— Fiore, ii. Nos. 1169-1176— Calvo, iii. §§ 1363-1367—
Martens, ii. § 17 — Satow, Diplomatic Practice, i. §§ 410-438.
§ 406. A diplomatic mission may come to an end Termina-
from eleven different causes— namely, accomplishment ^o°°tra-
of the obiect for which the mission was sent ; expira- <iistine-
. "■ r 1 • r tionto
tion of letters of credence given to an envoy tor a Suspen-
specific time only ; recall of the envoy by the sending "°°"
State ; his promotion to a higher class ; the deUvery
of passports to hinri by the receiving State ; request of
the envoy for his passports ; war between the sending
and the receiving State ; constitutional changes in the
headship of the sending or receiving State ; revolu-
tionary change of government in the sending or receiv-
ing State ; extinction of the sending or receiving State ;
and, lastly, death of the envoy. These events must be
treated singly on account of their peculiarities. But the
termination of diplomatic missions must not be con-
^ This usage was abused during in Norway and Switzerland carried
the World War, when couriers in explosives concealed in their sealed
the service of the German legations luggage.
582
DIPLOMATIC ENVOYS
founded with their suspension. Whereas from the fore-
going eleven causes a mission actually comes to an end,
and new letters of credence are necessary, a suspension
does not put an end to the mission, but creates an in-
terval during which the envoy, although he remains
in office, cannot exercise his office. Suspension may be
the result of various causes, as, for instance, a revolu-
tion within the sending or receiving State. Whatever
the cause may be, an envoy enjoys all his privileges
during the duration of the suspension.
Aooom- § 407. A mission comes to an end through the fulfil-
of'oT^eo"* iiaent of its objects in all cases of missions sent for special
of Mis- purposes, such as ceremonial functions like representa-
tions at weddings, funerals, and coronations ; or notifica-
tion of changes in the headship of a State ; or representa-
tion of a State at conferences and congresses, and the
like. Although the mission is terminated through the
accompHshment of its object, the envoys enjoy all their
privileges on their way home.
Bxpira- § 408. If a letter of credence of a limited duration is
Letter of givcn to au envoy, his mission terminates at the expira-
Credenoe. (^Jqj^ pf ^}^q period. A temporary letter of credence
may, for instance, be given to an individual for the
purpose of representing a State diplomatically during
the interval between the recall of an ambassador and
the appointment of his successor.
Eeoaii. § 409. The mission of an envoy, be he permanently
or only temporarily appointed, terminates through his
recall by the sending State. If this recall is not caused
by unfriendly acts of the receiving State, but by other
circumstances, the envoy receives a letter of recall from
the head, or, in case he is only a charge d'affaires,
from the Foreign Secretary of his home State, and he ^
' But sometimes his suooeBsor receiving State, or to the Foreign
presents the letter recalling his Secretary in the ease of charges
predeoesBor to the head of the d'affaires.
TERMINATION OF DIPLOMATIC MISSION 583
hands this letter to the head of the receiving State in a
solemn audience, or in the case of a charge d'affaires
to the Foreign Secretary. In exchange for the letter
of recall the envoy receives his passports and a so-called
Lettre de recreance, a letter in which the head of the re-
ceiving State (or the Foreign Secretary) acknowledges
the letter of recall. Although therewith his mission
ends, he enjoys nevertheless all his privileges on his
home journey.^ A recall may be caused by the resigna-
tion of the envoy, by his transference to another post,
and the like. It may, secondly, be caused by the out-
break of a conflict between the sending and the receiving
State which leads to a rupture of diplomatic intercourse,
and imder these circumstances the sending State may
order its envoy to ask for his passports and depart at
once without handing in a letter of recall. And,
thirdly, a recall may result from a request of the receiv-
ing State by reason of real or alleged misconduct of the
envoy. Such request of recall may lead to a rupture
of diplomatic intercourse, if the receiving State insists
upon the recall, and the sending State does not recog-
nise the act of its envoy as misconduct.
EL^imples of requests by a receiving State for the
recall of diplomatic envoys occurred during the World
War .2 On September 8, 1915, the United States requested
the Austro-Hungarian Government to recall its ambas-
sador at Washington, Dr. Dumba, for proposing plans
to instigate strikes in American munition factories, and
for employing an American citizen with an American
passport as a secret bearer of ofl&cial despatches through
thehnesof the enemy of Austria-Hungary. On December
4, 1915, the United States requested GJermany to recall
Oaptain Boy-Ed, naval attache, and Captain von
' See the interesting cases dis- * Earlier cases of request of recall
cnssed by Moore, iv. § 666. See of enToys are reported by Taylor,
also In re Svarez, Svarez v. Suarez, % 322 ; Hall, § 98** ; Moore, iv.
[1917] 2 Ch. 131 ; [1918] 1 CSi. 176. § 639 ; Hershey, No. 269.
584
DIPLOMATIC ENVOYS
Papen, military attache, to the German embassy at
Washington, on account of their ' connection with the
illegal and questionable acts of certain persons within
the United States.' ^
Promo- § 410. When an envoy remains at his post, but is
Higher* promoted to a higher class — ^for instance, when a charge
Class. d'affaires is created a minister resident, or a minister
plenipotentiary is created an ambassador — ^his original
mission technically ends, and he therefore receives a
new letter of credence.
Delivery § 411. A missiou may terminate, further, through the
portsf^ dehvery of his passports to an envoy by the receiving
State. The reason for such dismissal of an envoy may
be, either gross misconduct on his part, or a quarrel
between the sending and the receiving State which leads
to a rupture of diplomatic intercourse. Whenever such
rupture takes place, diplomatic relations between the
two States come to an end, and all diplomatic privi-
leges cease when the envoy departs and crosses the
frontier. If the archives of the legations are not re-
moved, they must be put imder seal by the departing
envoy, and confided to the protection ^ of some other
foreign legation.
Request § 412. Without being recalled, an envoy may, on
ports!^^^ his own account, ask for his passports and depart, in
consequence of ill-treatment by the receiving State.
This may, or may not, lead to a rupture of diplomatic
intercourse.
Outbreak § 413. When war breaks out between the sending and
the receiving State before their envoys accredited to
each other are recalled, their mission nevertheless comes
to an end. They receive their passports, but they must
be granted their privileges ^ on their way home.
'See A.J., X. (1916), Special srmm, see above, §§ 106 and 386.
Supplement, pp. 361, 363. » See below, vol. ii. § 98.
' As regards the case of MmiJba-
of War.
TERMINATION Or DIPLOMATIC MISSION 585
§ 414. If the head of the sending or receiving State ConsUtu-
is a sovereign, his death or abdication terminates the changes.
missions sent and received by him, and all envoys re-
maining at their posts must receive new letters of
credence. But if they receive new letters of credence,
their place in order of seniority remains as before. More-
over, during the time between the termination of their
mission and the arrival of new letters of credence they
enjoy aU the privileges of diplomatic envoys.
As regards the effect of constitutional changes in the
headship of repubhcs on the missions sent or received,
this general rule can be laid down : When, as in France
or the United States of America, the President is con-
sidered to be the head of the repubhc, and it is he who
sends and receives diplomatic envoys, a constitutional
change in the headship through death, abdication or
expiration of office must necessarily terminate the
missions sent and received by the former head, and new
letters of credence must be provided. But when, as in
Switzerland, the Bundesrath, a body of individuals, is
considered to be the head of the repubhc, the death or
abdication of the President, or the expiration of his term
of office, does not terminate the missions, and no new
letters of credence are necessary.
§ 415. A revolutionary movement in the sending Revoiu-
or receiving State which creates a new Government, changes
changing, for example, a repubhc into a monarchy or ofctovem-
a monarchy into a repubhc, or deposing a sovereign
and enthroning another, terminates the missions. All
envoys remaining at their posts must receive new
letters of credence, but no change in seniority takes
place if they do receive them. It happens that in cases
of revolutionary changes of Grovernment foreign States,
for some time, neither send new letters of credence to
their envoys nor recall them, watching the course of
events in the meantime, and waiting for more proof of
586 DIPLOMATIC ENVOYS
a real settlement. In such cases the envoys are, accord-
ing to an international usage, granted all privileges of
diplomatic envoys, although in strict law they have
ceased to be such. In cases of recall subsequent to
revolutionary changes, the protection of subjects of the
recaUing States remains in the hands of their consuls,
since the consular office^ does not come to an end through
constitutional or revolutionary changes in the headship
of a State.
Extino- § 416. If the State sending or receiving a mission is
tionof ^. . , - 1 , ° . ^ , „
sending or extmguished by voluntary merger mto another otate,
s^T°^ or through annexation in consequence of conquest, the
mission terminates ipso facto. In case of annexation
of the receiving State, there can be no doubt that,
although the annexing State will not consider the envoys
received by the annexed State as accredited to itself,
it must grant those envoys the right to leave the terri-
tory of the annexed State unmolested, and to take their
archives away with them. In case of annexation of
the sending State, the question arises what becomes of
the archives and official property belonging to the
missions of the annexed State accredited to foreign
States. This question is one on the so-called succes-
sion 2 of States. The annexing State acquires, ipso
facto, by the annexation the property in those archives
and other official property, such as the hotels, furniture,
and the Uke. But as long as the annexation is not
notified and recognised, the receiving States have no
duty to interfere.
Death of § 417. A missiou ends, lastly, by the death of the
°^°^" envoy. As soon as an envoy is dead, his effects, and
especially his papers, must be sealed. This is done by
a member of the legation of the dead envoy, or, if there
be no such members, by a member of another legation
accredited to the same State. The local Grovernment
• See below, § 438. ' See above, § 82.
TERMINATION OF DIPLOMATIC MISSION 587
must not interfere, unless at the special request of the
home State of the deceased envoy.
Although the mission, and therefore the privileges of
the envoy, come to an end by his death, the members
of his family who resided under his roof, and the members
of his suite, enjoy their privileges imtil they leave the
country. But a certain time may be fixed for them to
depart, and on its expiration they lose their privilege
of exterritoriality. It must be specially mentioned
that the courts of the receiving State have no juris-
diction whatever over the goods and efEects of the
deceased envoy, and that no death duties can be
demanded.
CHAPTER III
CONSULS
I
THE INSTITUTION OF CONSTILS
Hall, § 105— Phillimore, li. §§ 243-246— Halleok, i. p. 396— Taylor, §§ 325-
326— Twlss, i. § 223— Ullinann, §§ 54-55— Bulmerincq in HoUzendorff,
iii. pp. 687-695— Heffter, §§ 241-242— Rivier, i. § 41— Nys, ii. pp. 450-
460— Calvo, iii. §§ 1368-1372— Bonfils, Nos. 733-742— Pradier-Fod^ri,
iv. §§ 2034-2043— Martens, ii. §§ 18-19— Kore, ii. Nos. 1176-1178—
Warden, A Treatise on the Origin, Natwre, etc., of the Gomvlwr
EatMishment (1814)— Miltitz, Manuel des Conmls, 5 vols. (1837-1839)—
Cussy, Riglemevts consvlaires des principaux iJtata maritime* (1851) —
H. B. Oppenheim, Handbuch der Oomsvlate oiler Lander (1854) — Cleroq
et Vallat, Guide pratique des Gonsvlats (5th ed. 1898) — Salles, L'lnatitu-
tion des Gonsvlats, son Origine, etc. (1898) — Chester Lloyd Jones, The
Gonsvlar Service of the United States: Its History and Activities (1906) —
Stowell, Le Gonsvl (1909), and Gonsular Cases and Opinions, etc. (1909)
— Pillaut, Manud de Droit consvlaire, 2 vols. (1910 and 1912) — Contuzzi,
Trattato teoricopratico di Diritto consula/re e diplomatico, 2 vols. (1910,
1911)— Jordan in R.I., 2nd Ser. viii. (1906), pp. 479-507, and 717-750.
Develop- § 418. The roots of the institution of consuls go back
^e'lnsti- to the second half of the Middle Ages. In the com-
c nsuis"* mercial towns of Italy, Spain, and France the merchants
used to appoint by election one or more of their feUow-
merchants as arbitrators in commercial disputes, who
were called Juges Consvls or Consuls Marchands. When,
between and after the Crusades, Itahan, Spanish, and
French merchants settled down in the Eastern countries,
founding factories, they brought the institution of
consuls with them, the merchants belonging to the same
THE INSTITUTION OF CONSULS 589
nation electing their own consul. The competence of
these consuls became, however, more and more enlarged
through treaties, so-called ' Capitulations,' between the
home States of the merchants and the Mohammedan
monarchs on whose territories these merchants had
settled down.^ The competence of consuls came to
comprise the whole civil and criminal jurisdiction over,
and protection of, the privileges, the Ufe, and the
property of their countrymen. From the East the
institution of consuls was transferred to the West. Thus,
in the fifteenth century Italian consuls existed in the
Netherlands and in London, EngHsh consuls in the
Netherlands, Sweden, Norway, Denmark, and Italy
(Pisa). These consuls in the West exercised, just as did
those in the East, exclusive civil and criminal jurisdic-
tion over the merchants of their nationality. But the
position of the consuls in the West decayed in the
beginning of the seventeenth century through the influ-
ence of the rising permanent legations on the one hand,
and, on the other, from the fact that everywhere foreign
merchants were brought under the civil and criminal
jurisdiction of the State in which they resided. This
change in their competence altered the position of
consuls in the Christian States of the West altogether.
Their functions now shrank into a general supervision
of the commerce and navigation of their home States,
and into a kind of protection of the commercial interests
of their countrymen. Consequently, they did not receive
much notice in the seventeenth and eighteenth centuries,
and it was not until the nineteenth century that the
general development of international commerce, naviga-
tion, and shipping again drew the attention of the
Governments to the value and importance of the institu-
tion of consuls. It was now systematically developed.
The position of the consuls, their functions, and their
1 See Twiss, i. §§ 253-263.
590 CONSULS
privileges were the subject of stipulations, either in
commercial treaties, or in special consular treaties/ and
the several States enacted statutes regarding the duties
of their consuls abroad, such as the Consular Act passed
by England in 1825.2
General § 419. Nowadays consuls are agents of States resid-
aoterof ^^S abroad for purposes of various kinds, but mainly
OonsuU. in the interests of the commerce and navigation of the
appointing State. As they are not diplomatic repre-
sentatives, they do not enjoy diplomatic privileges.
Nor have they, ordinarily, anything to do with inter-
course between their home State and the State in which
they reside. But these rules have exceptions. Consuls
of Christian Powers in certain non-Christian States
have retained their former competence, and exercise
full civil and criminal jurisdiction over their country-
men. And sometimes consuls are charged with the
tasks which are regularly fulfilled by diplomatic repre-
sentatives. Thus, in States under suzerainty, the
Powers are frequently represented by consuls, who
transact all the business otherwise transacted by diplo-
matic representatives, and who have, therefore, often
the title of ' Diplomatic Agents.' Thus, too, on occasions
small States, instead of accrediting diplomatic envoys
to another State, send only a consul, who combines con-
sular functions with those of a diplomatic envoy. It
must, however, be emphasised that consuls thereby
neither become diplomatic envoys, although they may
have the title of ' Diplomatic Agents,' nor enjoy the
privileges of diplomatic envoys if such privileges are
not specially provided for by treaties between the home
State and the State in which they reside. Different,
however, is the case in which a consul is at the same
time accredited as charg6 d'affaires, and in which, there-
* Phillimuro, ii. S266, gives a liHt ui auob treatiea.
' 6 Geo. IV. 0. 87.
COXSrLAK OBGAKISATION 591
foie, he combines two different offices ; for as charge
d'afiaires he is a diplomatic envoy, and enjoys all the
pnvileges of snch an envoy, provided he has received a
letter of credence.
n
CX)NSrXAE ORGANISATIOX
H^ tloragn Ptmerg md Jwriadictiem, | 13— Philliinoie, ii. $$ 2SS-2^—
HaDeek, i. p. 396— Tt^lw, § 328— Moore, r. § 696— Heishey, Nol 284—
UDmann, § 57 — Bahnainoq in H6Usaidor§', iii. pp. 695-701 — ^Birier, i.
i il— CWto, iii. g 1373-1376— Bonfils, Xce. 743-748— Pradier-Fod&*,
IT. M 2050-2055— M^ignhac, ii. pp. 330-333— Martens, ii. § 20— Stowell,
Lt Oc^j^, pp, IS&SSS—Gtmemi In^rmetiomi far Hit Mofestfi OcmaJar
Qfbars (1907).
§ 420. Oonsols are of two kiads. They are either DiSerent
spedaUy sent and paid for the administration of their oonanis.
coisalar office (Constdes missi), or they are appointed
from individnals, in most cases merchants, residing in
the distzict for which they are to administer the con-
sular office {Consvies decfi).^ Consuls of the first Idnd
who are the so-caDed prof essionsJ consols, and axe always
subjects of the sending State, have to devote their
whole time to the consular office. Consnls of the second
kind, who may or may not be subjects of the sending
State, administer the consular office besides following
their ordinary callings. Some States, such as France,
appoint professional consuls only ; most States, how-
ever, appoint consuls of both Idnds, according to the
importance d the consular districts. But there is a
general tendency with most States to appoint profes-
sional consuls for important districts.
No difference exists in the general position of the two
* To tjus distinction cooresponds Offioeis' aivl 'Trading Consular
IB the British Cmsolar Serriee Officers.'
Ae distmcti(» benreoi 'Cananlar
592
CONSULS
kinds of consuls according to International Law. But,
naturally, a professional consul enjoys in practice a
greater authority, and a more important social position,
and consular treaties often stipulate special privileges
for professional consuls.
Consular § 421. As the fuuctions of consuls are of a more or
less local character, most States appoint several consuls
on the territory of other larger States, confining the
duties of each to certain districts of such territories, or
even to a certain town or port only. Consular districts
as a rule coincide with provinces of the State in which
the consuls administer their offices. Consuls in each
consular district are independent of each other, and
conducb their correspondence directly with the Foreign
Office of their home State, the agents-consular excepted,
who correspond only with the consul who appoints them.
The extent of the districts is agreed upon between the
home State of the consul and the admitting State. Only
the consul appointed for a particular district is entitled
to exercise consular functions within its boundaries, and
to him alone the local authorities have to grant the
consular privileges, if any.
Different § 422. FouT classcs of consuls are generally distin-
ConsuK^ guished according to rank : consuls-general, consuls,
vice-consuls, and agents-consular. Consuls-general are
appointed either as the head of several consular dis-
tricts, and have then several consuls subordinate to
themselves, or as the head of one very large consular
district. Consuls are usually appointed for smaller
districts, and for towns or even ports only. Vice-
consuls are assistants of consuls-general and consuls
who themselves possess consular character and so can
take the consul's place in regard to all his duties ; they
are, according to the Municipal Law of some States,
appointed by the consul, subject to the approbation of
his home State. Agents-consular are agents with con-
CONSULAR ORGANISATION 593
sular character, appointed, subject to the, approbation
of the home Government, by a consul-general or consul
for the exercise of certain parts of the consular functions
in certain towns or other places of the consular district.
Agents-consular are not independent of the appointing
consul, and do not correspond directly with the home
State, since the appointing consul is responsible to his
Government for them. The so-called proconsul is not a
consul, but a locum tenens only during the temporary
absence or illness of a consul ; he possesses, therefore,
consular character for such time only as he actually is
the locum tenens.
The British Consular Service, which is being
reorganised, consisted in 1919 ^ of the following six
ranks : (1) agents and consuls-general, commissioners
and consuls-general ; (2) consuls-general ; (3) consuls ;
(4) vice-qonsuls ; (5) consular agents ; (6) proconsuls.
In the British Consular Service proconsuls only
exercise, as a rule, the notarial functions of a consular
officer.
§ 423. Although consuls conduct their correspond- Consuls
ence directly with their home Government, they are nate to
nevertheless subordinate to the diplomatic envoy of ^^}p-
. , '■ •' matio
their home Government accredited to the State in Envoys,
which they administer their consular office. According
to the Municipal Law of almost every State except the
United States of America, the diplomatic envoy has
full authority and control over them. He can give
instructions and orders, which they have to execute.
In doubtful cases they have to ask his advice and
instructions. On the other hand, the diplomatic envoy
has to protect the consuls in case they are injured by
the local Government.
* See Foreign Office List, 1919.
VOL. I. 2p
594 CONSULS
III
APPOINTMENT OP CONSULS
Hall, § 105— PhilUmore, ii. § 250— Halleck, i. p. 398— Moore, v. §§ 697-700
— Hershey, No. 285 — Ullmann, § 58 — Bulmerincq in Holtzeridorff, iii.
pp. 702-706— Rivier, i. § 41— Nys, ii. p. 457— Calvo, iii. §§ 1378-1384—
Bonfils, Nos. 749-752 — Pradier-Fod6r6, iv. §§ 2056-2067 — More, ii.
Nos. 1181-1182— Martens, ii. § 21— Stowell, Le Consul, pp. 207-216.
Quaiifioa- § 424. International Law has no rules in regard to
Candt the qualifications of an individual whom a State can
dates. appoint consul. Many States, however, by their Muni-
cipal Law require certain qualifications in professional
consuls. The question whether female consuls could
be appointed cannot be answered in the negative ;
but, on the other hand, no State is obhged to grant
them the exeqwdwr, and many States would at present
certainly refuse it.
No state § 425. According to International Law a State is not
admit ° obhged to admit any consuls. But the commercial
Consuls, interests of all States are so powerful, that in practice
every State must admit consuls of foreign Powers ; for
a State which refused would in its turn not be allowed
to have its own consuls abroad. Commercial and con-
sular treaties stipulate, as a rule, that the contracting
States shall have the right to appoint consuls in all
those parts of each other's country in which consuls of
third States are already or may in future be admitted.
Consequently a State cannot refuse admittance to a
consul of one State for a certain district if it admits a
consul of another State. But as long as a State has
not admitted the consul of any State for any particular
district, it can refuse to admit the consuls of all. Thus,
for instance, Russia refused for a long time for poUtical
reasons to admit consuls in Warsaw, now capital of
Poland.
APPOINTMENT OF CONSULS 595
§ 426. There is no doubt that it is within the com- What
petence of every full sovereign State to appoint consuls, stetesoan
As regards not-full sovereign States, everything depends ^^J^
upon the special case. As foreign States can appoint
consuls in States under suzerainty, it cannot be doubted
that, provided the contrary is not specially stipulated
between the vassal and the suzerain State, and pro-
vided the vassal State is not one which has no position
within the Family of Nations,^ a vassal State is, in its
turn, competent to appoint consuls in foreign States. In
regard to member-States of a Federal State, it is the
constitution of the Federal State which settles the
question. Thus, according to the constitution of
Germany, as it was before the World War, the Federal
State was exclusively competent to appoint consuls, in
contradistinction to diplomatic envoys who might be
sent and received by every member-State of the German
Empire.
§ 427. Consuls are appointed through a patent or Mode of
commission, the so-called Lettre de provision, of the^^^t^n^
State whose consular office they are intended to ad- °^ Admit-
minister. Vice-consuls are sometimes, and agents-con-
sular are always, appointed by the consul, subject to
the approval of the home State. Admittance of consuls
takes place through the grant of the so-called exeqvutur
by the head of the admitting State.^ The diplomatic
envoy of the appointing State hands the patent of the
appointed consul to the Secretary for Foreign Affairs
for communication to the head of the State, and the
exequatur is given, either in a special document, or by
means of the word exequatur written across the patent.
But the exequatur can be refused for personal reasons.
Thus, in 1869 England refused the exequatur to an Irish-
' See above § 91. within the competence of the latter
' That, in case a eonsul is to grant or refuse the exequatur,
appointed for a State which is under has been pointed out above, § 92.
the protectorate of another, it is
596
CONSULS
Appoint-
ment of
Consuls
includes
Recog-
nition.
man named Haggerty, who was naturalised in the United
States and appointed. American consul for Glasgow.
And the exequatur can be withdrawn for personal reasons
at any moment. Thus, in 1834 France withdrew it
from the Prussian consul at Bayonne for having helped
in getting suppMes of arms into Spain for the CarMsts.
§ 428. As the appointment of consuls takes place in
the interests of commerce, industry, and navigation,
and has merely local importance without political con-
sequences, it is maintained ^ that a State does not
indirectly recognise a newly created State merely by
appointing a consul to a district in it. This opinion,
however, does not agree with the facts of international
life. Since no consul can exercise his functions before
he has handed over his patent to the local State, and
has received its exequatur, it is evident that thereby the
appointing State enters into such formal intercourse
with the admitting State as indirectly ^ involves recog-
nition. But it is only if consuls are formally appointed
and formally receive the exequatur on the part of the
receiving State, that indirect recognition is involved.
If, on the other hand, no formal ^ appointment is made,
and no formal exequatur is asked for and received, foreign
individuals may, with the consent of the local State,
in fact exercise the functions of consuls without recog-
nition following therefrom. Such individuals are not
really consuls, although the local State allows them,
for political reasons, to exercise consular functions.
" Hall, §§ 26* and 105, and Moore,
i. § 72.
^ See above, § 72.
' The case mentioned by Hall,
§ 26*, of Great Britain appointing, in
1823, consuls to the South American
republics, without gazetting the
various consuls and — as must be
presumed — without the individuals
concerned asking formally for the
exequatur of the various South
American States, would seem to be
a case of informal appointment.
FUNCTIONS OF CONSULS 597
IV
FUNCTIONS OF CONSULS
Hall, § 105— PhilUmore, ii. §§ 257-260— Taylor, § 327— Halleok, i. pp. 408-
412— Moore, v. §§ 717-731 — Hershey, No. 286 — Ullmann, § 61—
Bulmerincq in Holtzendorff, iil. pp. 738-753 — Rivier, i. § 42 — Calvo, iii.
§§ 1421-1429— Bonfils, Nos. 762-771— Pradier-Fod6r6, iv. §§ 2069-2H3—
Fiore, ii. Nos. 1184-1186— Martens, ii. § 23— Stowell, Le Ooniul,
pp. 15-136.
§ 429. Although consuls are appointed chiefly in On Con-
the interests of commerce, industry, and navigation, y^.
they are also charged with various functions for other *'°°^ *"
purposes. Custom, commercial and consular treaties,
Municipal Laws, and Municipal Consular Instructions
prescribe detailed rules in regard to these functions.
They may be grouped under the heads of promotion of
commerce and industry, supervision of navigation,
protection, notarial functions.
§ 430. As consuls are appointed in the interests of Promo-
commerce and industry, they must be allowed by thecommeroe
receiving State to watch over the execution of the com- ^nd in-
^ , clustry.
mercial treaties of their home State, to send reports to
the latter in regard to everything which can influence
the development of its commerce and industry, and to
give information to merchants and manufacturers of
the appointing State necessary for the protection of
their commercial interests. Municipal Laws of the
several States and their Consular Instructions comprise
detailed rules on these consular functions, which are
of the greatest importance. Consular reports and con-
sular information to members of the commercial world
have rendered and render valuable assistance to the
development of the commerce and industry of their
home States.
§ 431. Another task of consuls consists in supervising
tion.
598 CONSULS
Super- the navigation of the appointing State. A consul at a
Na'wga'- port must be allowed to keep his eye on all merchant-
*"°°- men saiHng under the flag of his home State which enter
the port, to control and legalise their ship's papers, to
inspect them on their arrival and departure, and to
settle disputes between the master and crew or the
passengers. He assists sailors in distress, undertakes
the sending home of shipwrecked crews and passengess,
and attests averages. It is neither necessary, nor
possible, to enumerate all the duties and powers of
consuls in regard to supervision of navigation. It
should, however, be added that consuls must, upon the
request of the commander, assist in every possible way
any public vessel of their home State which enters their
port ; but they have no power of supervision over them.
Proteo- § 432. In exercising the protection which they must
be allowed by the receiving State to provide for subjects
of the appointing State, consuls fulfil a very important
task. For that purpose they keep a register, in which
these subjects can have their names and addresses
recorded. Consuls make out passports, and they have
to render certain assistance and help to paupers and
the sick, and to litigants before the courts. If a foreign
subject is wronged by the local authorities, his consul
has to give him advice and help, and has eventuallly to
interfere on his behalf. If a foreigner dies, his consul
may be approached for securing his property, and for
rendering all kind of assistance and help to the family
of the deceased.
As a rule, a consul exercises protective functions over
subjects of the appointing State only ; but the latter
may charge him with the protection of subjects of other
States which have not nominated a consul for his
district.
§ 433. Very important are the notarial and similar
functions with which consuls are charged. They attest
POSITION AND PRIVILEGES OF CONSULS 599
and legalise signatures, examine witnesses and administer Notarial
oaths for the purpose of procuring evidence for the tions.
coorts and other authorities of the appointing State.
They conclude or register marriages of the subjects of
the State which they represent, take charge of their
wills, legalise their adoptions, register their births and
deaths. They provide authorised translations for local
and for home authorities, and furnish attestations of
many kinds. All consular functions of this kind are
enumerated in detail by Municipal Laws and Consular
Instructions. But it should be specially observed that
whereas promotion of commerce, supervision of navi-
gation, and protection are functions the exercise of
which must, according to a customary rule of Inter-
national Law, be permitted to consuls by receiving
States, many ot their notarial functions need not be, in
the absence of treaty stipulations.
POSITION AND PRIVILEGES OP CONSULS
Hall, § 105— Phillimore, ii. §§ 261-271— Halleok, i. pp. 399-408— Taylor,
§§ 326-332, 333 — Moore, v. §§ 702-716 — Hershey, Nos. 287-289—
Ullmann, §§ 60 and 62— Bulmerinoq in HoUzendorff, iii. pp. 710-720—
Rivier, i. § 42— Calvo, iii. §§ 1385-1420— Bonfils, Nos. 753-761— Pradier-
Pod6r6, iv. §§ 2114-2121— Fiore, ii. No. 1183— Martens, ii. § 22— Bodin,
Les ImmunMs ccnsvlaires (1899) — Stowell, Le Gonsvi, pp. 137-184 —
Ludwig, Consvlar Treaty Rights (1914) — -Heyking in the Journal of the
Society of Comparative Legislation, New Ser. xiii. (1913), pp. 574-581
— Lederle in Z.I., xxvii. (1918), pp. 154-176.
§ 434. Like diplomatic envoys, consuls are simply Position.
objects of International Law. Such rights as they have
are granted to them by Municipal Laws, in compliance
with rights enjoyed by the appointing States according
to International Law.^ As regards their position, it
1 See above, § 384.
600
CONSULS
should nowadays be uncontested that consuls do not
enjoy the position of diplomatic envoys, since no
Christian State in practice grants to foreign consuls the
privileges of diplomatic agents. ^ On the other hand,
it would be incorrect to maintain that their position is
in no way different from that of any other individual
living within the consular district. Since they are
appointed by foreign States, and have received the
exequatur, they are pubhcly recognised by the admit-
ting State as agents of the appointing State. Of course,
consuls are not diplomatic representatives, for they do
not represent the appointing States in the totahty of
their international relations, but for a limited number
of tasks, and for local purposes only. Yet they bear a
recognised public character, in contradistinction to
mere private individuals, and, consequently, their
position is different, even though legally they might not
be eiititled to claim special privileges of any kind. This
is certainly the case with regard to professional consuls,
who are. officials of their home State, and are specially
sent to the foreign State for the purpose of administer-
ing the consular office. But in regard to non-profes-
sional consuls it must likewise be maintained that the
admitting State by granting the exequatur recognises
their official position towards itself, and this demands
at least a special protection ^ for their persons and
residences. The official position of consuls, however,
does not involve direct intercourse with the Govern-
ment of the admitting State. Consuls are appointed
for local purposes only, and they have, therefore, direct
intercourse with the local authorities only. If they want
' Viveash v. Becker, (1814) 3 tures, is not protected by his official
M. and S. 284. position against seizure of his goods
carried by enemy vessels, for by
' According to British and Ameri- trading in the enemy country he
can practice, a consul of a neutral acquires to a certain extent enemy
Power accredited to an enemy State character ; see the case of The Indian
who embarks upon mercantile ven- Chief (3 C. Bob. 12),
POSITION AND PRIVILEGES OP CONSULS 601
to approach the Grovernment itself, they can do so only
through the diplomatic envoy, to whom they are
subordinate.
§ 435. From the undoubted official position of consuls Conaniar
no universally recognised privileges of importance have leg^."
as yet been evolved. Apart from the special protec-
tion due to consuls according to International Law,
there is neither a custom nor a universal agreement
between the Powers to grant them important privileges.
Such privileges as consuls actually enjoy are granted
to them either by courtesy or in compliance with special
stipulations in a commercial or consular treaty between
the sending and the admitting State. I doubt not that
in time the Powers will agree upon a universal treaty
in regard to the position and privileges of consuls.^
Meanwhile, it is of interest to notice some of the more
important stipulations to be found in the ionumerable
treaties between the several States in regard to con-
sular privileges :
(1) A distinction is very often made between pro-
fessional and non-professional consuls, more privileges
being accorded to the former.
(2) Although consuls are not exempt from the local
civil and criminal jurisdiction, criminal jurisdiction
over professional consuls is often limited to crimes of a
more serious character.
(3) In many treaties it is stipulated that consular
archives shall be inviolable from search or seizure.
Consuls are therefore obliged to keep their official docu-
ments and correspondence separate from their private
papers.
(4) InviolabUity of the consular bmldiags is also
sometimes stipulated, so that no officer of the local
^ The Institute of International Immunit^s consulaires' comprising
Law at its meeting at Venice in twenty-one articles. Anmuiire, xv.
1896 adopted a ' B^glement sur les p. 304.
602
CONSULS
police, courts, etc., can enter these buildings without
special permission from the consul. But it is then the
duty of consuls to surrender criminals who have taken
refuge in these buildings.
(5) Professional consuls are often exempt from all
kinds of rates and taxes, from the liability to have
soldiers quartered in their houses, and from the duty
of appearing in person as witnesses before the courts.
In the latter case consuls have either to send in their
evidence in writing, or their evidence may be taken
by a commission on the premises of the consulate.
(6) Consuls of all kinds have the right to put up the
arms of the appointing State over the door of the con-
sular building, and to hoist the national flag.
VI
TERMINATION OP CONSULAR OFFICE
Hall, § 105— Moore, v. § 701— Hershey, No. 290— Ullmann, § 59— Bulmerinoq
in SoUzendorff, iii. p. 708— Rivier, i. pp. 533-534— Calvo, iii. §§ 1382,
1383, 1450— Bonfils, No. 775— Fiore, ii. No. 1187— Martens, u. § 21
— Stowell, Le Consul, pp. 217-222.
Un- § 436. Death of the consul, withdrawal of the exe-
Causes of quotur, recall or dismissal, and, lastly, war between the
Termina- appointing and the admitting State, are universally
recognised causes of the termination of the consular
oflS.ce. When a consul dies, or war breaks out, the con-
sular archives must not be touched by the local autho-
rities. They remain either under the care of an emfloye
of the consulate, or imder the charge of a consul of
another State, until the successor of the deceased
consul arrives, or peace is concluded.
Doubtful § 437. It is not certain in practice whether the office
Ter^^n^- of a cousul terminates when his district, through cession,
tio"- annexation following conquest, or revolt, becomes the
TERMINATION OP CONSULAR OFFICE 603
property of another State. The question ought to be
answered in the affirmative, because the exequatur given
to him originates from a Government which no longer
possesses the territory. In 1836, Belgium, which was
then not yet recognised by Russia, declared that she
would no longer treat the Russian consul, Aegi, at
Antwerp as consul, because he was appointed before
the revolt, and his exequatur was granted by the Govern-
ment of the Netherlands. Although Belgium gave way
in the end to the urgent remonstrances of Russia, her
original attitude was legally correct.
When a consular district has been conquered but not
annexed, that is to say when it is imder miUtary occupa-
tion, different considerations apply. In November
1914, during the World War, after having occupied
the greater part of Belgimn, the German Government
declared that the exequatur granted before the war by
the Belgian Grovemment to consuls of neutral States in
occupied consular districts had expired through the
Crerman occupation, and that the offices of the consuls
concerned had terminated. The Belgian Government
protested, but the United States of America rightly
held that the occupying Government need not recognise
an exequatur given by the legitimate Government, but
might suspend it. However, suspension is not termina-
tion, and such an exequatur at once revives on the occu-
pation coming to an end.
§ 438. It is universally recognised that, in contra- Change in
distinction to a diplomatic mission, the consular office ahfp of
does not come to an end through a change in the head- ^^^^°^
ship of the appointing or the admitting State. Neither Tennina-
a new patent nor a new exequatur is therefore necessary
whether another king comes to the throne or a monarchy
turns into a republic, or in any like case.
604 CONSULS
VII
CONSULS IN NON-CHRISTIAN STATES
HaUeck, i. pp. 386-400— Phillimore, u. §§ 272-277— Taylor, §§ 331-333—
Twiss, i. §§ 163, 253-264— Hershey, No. 291— Wheaton, § 110— UUmaim,
§§ 63-65— Bnlmerincq in Hdtzendorff, iii. pp. 720-738— Rivier, i. § 43—
Nys, ii. pp. 460-475— Calvo, iii. §§ 1431-1444— Bonfils, Nos. 776-791—
Pradier-Fod4r6, iv. 2122-2138— Mirignhac, ii. pp. 338-351— Martens, ii.
§§ 24-26, and Kcmsidwrwesen wnd Kanavlarjwriadiction im Orient
(German translation from the Russian original by Skerst, 1874) —
Tarring, British Ganavlar Jurisdiction jn the East (1887) — ^HaU, Foreign
Powers and Jurisdiction, §§ 64-85 — Bmillat, i!tude historique et critique
sur les Jurisdictions consuLaircs (1898) — Lippmann, Die Konsidarjuris-
diction im Orient (1898) — Verg6, Des Consuls dans les Pays d'Ocddent
(1903) — Hinckley, American OonsaUvr Jurisdiction in the Orient (1906)
— Piggott, Exterritoriality: The Law relating to Consular Jurisdiction,
etc., in Oriental Countries (new ed. 1907) — Mandelstam, La Justice
ottomame dans ses Bapports avec les Puissances Srangires (1911), and in
B.0., xiv. (1907), pp. 5 and 534, and xv. (1908), pp. 329-384— Tohou,
Le Begime des CajntuUUions ... en Chine (1915).
Position § 439. Consuls in certain non-Chxistian States enjoy
of Consuls a position fundamentally different from that of consuls
m certain . -^ •'
non- ia general. In the Christian countries of the West
States!^" consuls have, as has been stated (§ 418), lost jurisdiction
over the subjects of the appointing States. In the
Mohammedan States consuls not only retained their
original jurisdiction, but by degrees acquired, through
the so-called Capitulations, complete civil and criminal
jurisdiction, the power of protection over the privileges,
hfe, and property of their countrymen, and even the
power to expel one of their countrymen for bad conduct.
Moreover, custom and treaties secured to consuls in
these States inviolability, exterritoriality, ceremonial
honours, and miscellaneous other rights, so that there
is no doubt that their position became materially the
same as that of diplomatic envoys. A similar position
was acquired by consuls in China, Japan, Persia, and
other non-Christian countries.
CONSULS m NON-CHRISTIAN STATES 605
In 1899, however, consuls in Japan lost this privileged
position and became assimilated to those in Western
States. In 1914 Turkey denounced the Capitulations,^
but by the Treaty of Peace will be called upon to accept
a scheme of judicial reform drawn up by foreign Powers.
By the Treaties of Peace with Germany and Austria
these States renounced the benefits of treaties conferring
upon them extraterritorial jurisdiction in Siam, and of
the Capitulations in Morocco and Egypt. It appears
therefore that consular jurisdiction in Eastern States is
being gradually restricted within narrower limits.
§ 440. Where consular jurisdiction is still in full force, Consular
international custom and treaties only lay down the tionln'"
rule that aU the subjects of Christian States shall remain certain
under the jurisdiction of the home State as exercised by Christian
their consuls.^ It is for the Municipal Laws of the ^***®^-
States concerned to organise this consular jurisdiction,
and all States have in fact done so. As regards Great
Britain, the Foreign Jurisdiction Act, 1890 (53 & 54
Vict. c. 37) and several Orders in Council are now its
legal basis.2 The working of consular jurisdiction is,
however, not satisfactory in regard to the so-called
' mixed cases.' As the consul has exclusive jurisdiction
over the subjects of his home State, he exercises it also
in cases in which the plaintiff is a native, or is a subject
of another State. These are called 'mixed cases.'
§ 441. To overcome some of the disadvantages of the inter-
consular jurisdiction, an interesting experiment was co^tTin
made in Egypt. On the initiative of the Khedive, Egypt.
most of the Powers in 1875 agreed to the organisation
of international courts in Egypt for mixed cases,^
' See above, § 318. of the Capitttlations (1907) ; Goudy
« H=o Tj;~~„i.j. „„ -.V i° the Law Quourterly Review, xxiii.
See Piggott, op. cU. ^g^^^^ pp ^^g^jg fveroam^r, La
° See Holland, The European Jurisdiction mixte igyptiennt et sea
Concert in the Eastern Question, Attributions IdgislativesllQll); Garcia
pp. 102- LOS; Seott, The Law affect- de Herreros, Les Tribwnaux mixtes
ing Foreigners in Egypt as the Result d'Egypte (1915).
606
CONSULS
which began their work in 1876. They were chiefly
given jurisdiction in mixed civil cases, mixed criminal
cases of importance remaining under the jurisdiction
of the national consuls. Three international courts
of first instance were established, each composed of
three natives and four foreigners, and one international
court of appeal at Alexandria, composed of four natives
and seven foreigners.
But Egypt has now become a British protectorate,
and the Egyptian judicial system is in process of re-
organisation. Great Britain will, where necessary,
conduct negotiations with foreign States to secure
their concurrence in the proposed changes. Germany
and Austria have already surrendered their right to
intervene in this matter.^
Bxoep- § 442. There is no doubt that the exceptional posi-
Charaoter tiou o| cousuls in States where consular jurisdiction
incertahf ^s excrcised does not agree with the principles of Inter-
",°": national Law otherwise universally recognised ; but it
states, is, and must remain, a necessity, so long as the civilisa-
tion of these States has not developed their ideas of
justice in accordance with Christian ideas, so as to
preserve the hfe, property, and honour of foreigners
before native courts. The case of Japan is an example
of the readiness of the Powers to consent to the with-
drawal of consular jurisdiction in such States as soon
as they have reached a certain level of civilisation.
' See Treaty of Peace with Ger- Peace with Austria, Articles 102-
many, Articles 147-148 ; Treaty of 103.
CHAPTER IV
MISCELLANEOUS AGENCIES
I
ARMED FORCES ON FOREIGN TERRITORY
Hall, §§ 54, 56, 102— Lawrence, § 107— PhilUmore, i. § 341— Taylor, § 131—
Twiss, i. § 165— Wheaton, § 99— Moore, ii. § 251— Weatlake, i. p. 265—
Stoerk in SoUzendorf, ii. pp. 664-666— Rivier, i. pp. 333-335— Calvo,
iii. § 1560— FitDre, i. Nos. 528-529— Praag, Nos. 245-250.
§ 443. Armed forces are organs of the State which Armed
maintains them, because they are created for the purpose g°^^^
of maintaining the independence, authority, and safety Organa.
of the State. And in this respect it matters not whether
armed forces are at home or abroad ; for they are organs
of their home State, even when on foreign territory,
provided only that they are there in the service of their
State, and not for their own purposes. For if a body
of armed soldiers enters foreign territory without orders
from, or without being otherwise in the service of, its
State, but on its own account, be it for pleasure or for
the purpose of committing acts of violence, it is no longer
an organ of its State.
§ 444. Besides war, there are several occasions for Oooasions
armed forces to be on foreign territory in the service I'^fg™*'^
of their home State. Thus, a State may have a right Abroad,
to keep troops in a foreign fortress, or to send troops
through foreign territory. Thus, further, a State which
607
608 MISCELLANEOUS AGENCIES
has been victorious in war with another may, after the
conclusion of peace, occupy a part of the territory of
its former opponent as a guarantee for the execution
of the treaty of peacei After the Franco-German War,
for example, the Germans in 1871 occupied a part of the
territory of France until the final instalments of the
indemnity for the war costs of five milliards of francs
were paid. Or again, under Articles 428 to 432 of the
Treaty of Peace with Germany, the German territory
west of the Rhine and the Rhine bridgeheads are to be
occupied by AUied and Associated troops as a guarantee
for the execution of the treaty. It may also be a case
of necessity for the armed forces of a State to enter
foreign territory and commit acts of violence there,
as the British did in the case of The Caroline?-
Position § 445. Whenever armed forces are on foreign terri-
Forces^ tory in the service of their home State, they are con-
Abroad. si(Jered exterritorial and remain, therefore, under its
jurisdiction. A crime committed on foreign territory
by a member of these forces cannot be punished by the
local civil or miUtary authorities, but only by the com-
manding officer of the forces or by other authorities of
their home State.^ This rule, however, apphes only
in case the crime is committed, either within the place
where the force is stationed, or in some place where the
criminal was on duty; it does not apply, if, for example,
soldiers belonging to a foreign garrison of a fortress leave
the rayon of the fortress, not on duty but for recreation
and pleasure, and then and there commit a crime. The
local authorities are in that case competent to punish
them.
Nor does it apply if in time of war a belligerent cap-
' See above, § 133, and below, still • a few dissenting authorities,
§ 446. such as Bar, Lehrhwih dea inter-
* This is nowadays the opinion of nationalen Privat- wnd Strafreckt
the vast majority of writers on Inter- (1892), p. 351, and Eivier, i.
national Law. There are, however, p. 333.
AKMED FOBCES ON POBEIGN TERRITORY 609
tures members of the armed forces of the enemy who
before their captm:e committed such violations of the
laws and customs of war as are considered to be war
crimes. A belligerent may try prisoners of war, and
punish them, as war criminals.^
§ 446. An excellent example of the position of armed Case of
forces abroad is furnished by the case of M'Leod,^ which ^ ^"^'
occurred in 1840. Alexander M'Leod, who was a
member of the British force sent by the Canadian
Government in 1837 into the territory of the United
States for the purpose of capturing the Caroline, a boat
equipped for crossing into Canadian territory, and
taking help to the Canadian insurgents, came in
1840 on business to the State of New York, and
was there arrested and indicted for the killing of
one Amos Durfee, a citizen of the United States,
on the occasion of the capture of the Caroline. The
British ambassador at Washington demanded the
release of M'Leod, on the ground that he was, at
the time of the alleged crime, a member of a British
armed force sent into the territory of the United
States by the Canadian Government acting in a case
of necessity. M'Leod was not released, but had to
stand his trial in 1840, when he was acquitted on proof
of an aHhi. However, in the reply of Mr. Webster, the
Secretary for Foreign Affairs of the United States, to a
note from the British ambassador occurs the following
passage : ' The Government of the United States enter-
' See below, vol. ii. § 251. When, assertion is quite unfovmded, since
during the World War, the French the very definition of war crimes
tried by court-martial, and punished, as such acts of soldiers or other
German prisoners of war who had individuals as may he punished by
pillaged before their capture, some the enemy on capture of the offenders
German writers — see Strupp inZ.I., — see below, vol. ii. § 251 — involves
Mv. (1915), p. 359 — asserted that the right of a belligerent to punish
since armed forces abroad remain prisoners of war for haNdng pre-
mider the exclusive jurisdiction of viously violated the laws and customs
their home State, the French had of war.
no right to punish captured German * See Wharton, i. § 21, and Moore,
soldiers for war crimes. But this ii. § 179.
VOL. I. 2q
610 MISCELLANEOUS AGENCIES
tains no doubt that, after the avowal of the transaction
as a pubUc transaction, authorised and undertaken by
the British authorities, individuals concerned in it
ought not ... to be holden personally responsible in
the ordinary tribunals for their participation in it.'
The Casa § 446a. Another interesting example is the Casa
Incident. Blanca incident. On September 25, 1908, six soldiers
— three of them Germans — belonging to the French
Foreign Legion which formed part of the French troops
in Morocco, deserted at Casa Blanca, and asked for, and
obtained, the protection of the local German consul,
who intended to take them on board a German vessel
lying in the harbour of Casa Blanca. On their way to
the ship, however, they were forcibly taken by the
French out of the custody of the secretary of the German
consulate, and of a native soldier in the service of the
consulate, who were conducting them. Considering
all Germans in Morocco without exception exterritorial,
and under the exclusive jurisdiction of her consul,
Germany complained of this act of force, and demanded
that those of the deserters who were German subjects
should be given up to her by France. Germany admitted
that the consul had no right to extend his protection to
other than German subjects. France refused to con-
cede this demand, maintaining that the individuals con-
cerned had, even after their desertion, remained under
the exclusive jurisdiction of their corps, which formed
part of a French force occupying foreign territory. As
the parties could not settle the conflict diplomatically,
they agreed, on November 10, 1908, to bring it before
the Hague Court of Arbitration, which gave its award ^
on May 22, 1909, which was on the whole in favour of
France. The Court held that there was a conflict of
jurisdiction with regard to the German deserters, because
' See Martens, N.R.6., 3rd Ser. of the award is printed in A. J., iii.
ii. p. 19. An English translation (1909), p. 755.
ARMED FORCES ON FOREIGN TERRITORY 611
as Grerman subjects they were under the exclusive juris-
diction, of the Grerman consulate, but as deserters from
the French Foreign Legion they were under the exclusive
jurisdiction of the French Army of Occupation ; that,
under the circumstances of the case, the jurisdiction of
the Army of Occupation should have the preference ;
that nevertheless the Grerman consul was not to be
blamed for his action, since in a country granting exterri-
torial jurisdiction to foreigners the question of the respec-
tive competency of the consular jurisdiction and of the
jurisdiction of an Army of Occupation was very compli-
cated and had never been settled in an express, distinct,
and universally recognised manner ; that, since the
German deserters were found at the port under the
actual protection of the Grerman consulate, and this
protection was not manifestly Ulegal, the actual situa-
tion should, as far as possible, have been respected by
the French military authority; that 'therefore the
French miUtary authorities ought to have confined them-
selves to preventing the embarkation and escape of the
deserters, and, before proceeding to their arrest and
imprisonment, ought to have offered to leave them
under sequestration by the German consulate until
the question of the competent jurisdiction had been
decided. The Court did not, however, decree the
restitution by France of the three German deserters
to Gtermany.i
' The ambiguity of the award has are exclusively competent to exercise
justly been severely criticised. If, jurisdiction. But it is a well-known
as the Court correctly asserts, the fact that courts of arbitration
jurisdiction of an Army of Oocupa- frequently endeavour to give an
tion must prevail over the juris- award which satisfies both parties,
diction of a consul over his nationals and the ambiguity of the award in
in a country granting exterritorial the Casa Blanca incident is mani-
jurisdiction, a decision of the con- festly due to this cause. The awai-d
fliot on mere legal grounds would is not of such a kind as one would
have to be entirely in favour of expect from a court of justice,
France, for it is difficult to see how although it may be an excellent
a wrongfully acquired and illegally specimen of an arbitral decision,
asserted protection can create any See A. J., iii. (1909), pp. 698-701.
obligation on the part of those who
612
MISCELLANEOUS AGENCIES
II
MEN-OF-WAR IN FOREIGN WATERS
Hall, §§ 54-55— Lawrence, § 107— Phillimore, ii. §§ 344-350— Westlake, pp.
266-269— Taylor, § 261— Moore, ii. §§ 252-256— Twiss, i. § 165— Stephen,
History of the Criminal Law of England (1883), ii. pp. 43-58 —
Wheaton, § 100— Bluntsohli, § 321— Stoerk in Holtzendorff, ii. pp. 434-
446— Perels, §§ 11, 14, 15— Heilborn, System, pp. 248-278— Rivier, i.
pp. 333-335— Bonfils, Nos. 614-623— M6rignhae, ii. pp. 554-565— Calvo,
iii. §§ 1550-1569— Fiore, i. Nos. 547-550— Testa, p. 86— Jordan, B.I.,
2nd Ser. x. (1908), p. 343— Praag, Nos. 251-259.
Men-of- § 447. Men-of-war are State organs just as armed
Organs^ ^ forces are, a man-of-war being in fact a part of the armed
forces of a State. And respecting their character as
State organs, it matters not whether men-of-war are at
home, or in foreign territorial waters, or on the high
seas. But it must be emphasised that men-of-war are
State organs only so long as they are manned, and under
the command of a responsible officer, and, further, so
long as they are in the service of a State. A shipwrecked
man-of-war, abandoned by her crew, is no longer a State
organ ; nor does a man-of-war in revolt against her
State, and sailing for her own purposes, retain her
character as an organ of a State. On the other hand,
public vessels in the service of the police and the
customs of a State ; private vessels chartered by a
State for the transport of troops and war materials ;
and vessels carrying a head of a State and his suite
exclusively, are also considered to be State organs,
and are, consequently, in every point treated as
though they were men-of-war.
Proof of § 448. The character of a man-of-war, or of any other
asMran-o? vesscl treated as a man-of-war, is, in the first instance,
war. proved by its outward appearance ; a vessel of this kind
MEN-OF-WAE IN FOREIGN WATERS 613
flies the war fl.ag and the pennant of its State. ^ If, never-
theless, the character of the vessel seems doubtful, her
conunission, duly signed by the authorities of the State
which she appears to represent, supplies a complete
proof of her character as a man-of-war. And it is by
no means necessary to prove that the vessel is really the
property of the State, the commission being sufficient
evidence of her character. Vessels chartered by a State
for the transport of troops, or for the purpose of carrjdng
its head, are indeed not the property of such State,
although they bear, by virtue of their commissions, the
same character as men-of-war.^
§ 449. Whereas armed forces in time of peace have Occasions
no occasion to be abroad except under some special o7war°
condition, or in a case of necessity, men-of-war belonging -'^troad.
to all maritime States possessing a navy are constantly
crossing the high seas in all parts of the world, for all
kinds of purposes ; and occasions for men-of-war to sail
through foreign territorial waters, and to enter foreign
ports, necessarily arise. No special convention between
the flag-State and the Httoral State is necessary to enable
them to do this. All the territorial waters and ports
of civihsed States are, as a rule, open to men-of-war as
well as to merchantmen of all nations, provided they
are not excluded by special international stipulations,
or special Municipal Laws of the littoral States. On the
other hand, it must be emphasised that, unless special
international stipulations, or special treaties between
the flag-State and the littoral State, provide to the con-
trary in regard to a particular port or to certain terri-
torial waters, a State is, in strict law, always competent
to exclude men-of-war from all or certain of its ports,
' Attention ought to be drawn war only, it is indirectly of import-
here to Convention vii. (concerning anoe for the time of peace. For its
the conversion of merchant ships stipulations, see below, vol. ii. § 84.
into warships) of the second Hague * Privateers used to enjoy the
PeaeeOonf erence of 1907. Although same character and exemptions as
this convention concerns the time of men-of-war.
614
MISCELLANEOUS AGENCIES
Position
ofMen-of-
war in
Foreign
Waters.
and from those territorial waters wliich do not serve as
highways for international trajB&c.^ And a State is,
further, always competent to impose what conditions it
thinks necessary upon men-of-war wliich it allows to
enter its ports, provided these conditions do not deny
to men-of-war their universally recognised privileges,
§ 450. The position of men-of-war ^ in foreign waters
is characterised by the fact that they are called ' float-
ing ' portions of the flag-State. For at the present time
there is a customary rule of International Law, imiver-
sally recognised, that the State owning the waters into
which foreign men-of-war enter must treat them in
every point as though they were floating portions of
their flag-State.^ Consequently, a man-of-war, with aU
persons and goods on board, remains under the juris-
* The matter is controversial.
See above, § 188, and Westlake, i.
p. 196, in oontradistinotion to Hall,
§42.
' As to merchantmen, see above,
§189.
° This rule became universally
recognised during the nineteenth
century only. On the change of
doctrines formerly held in this
country and the United States of
America, see Hall, § 54, and
Lawrence, § 107. English and
American courts now recognise
the exterritoriality of foreign public
vessels. Thus, in The Exchcmge
(7 Cranch 116), the Supreme Court
of the United States recognised
that it had no jurisdiction over this
French man-of-war. In The Con-
etitution, an American man-of-war,
the High Court of Admiralty in
1879 held that foreign public ships
cannot be sued in English courts
for salvage (4 P.D. 39). And in the
case of The Parletnent Beige, ((1880)
5 P.D. 197, 214), the Court of Appeal
and the House of Lords held that
foreign public vessels cannot be sued
in English courts for damages fox
collision. The same was held in
1906 in The Jatsy, a Roumanian
ship (10 Asp. p. 278). See also The
Chwrkieh, (1873) L.R. 4 A. and E.
59. In The Gagwra ([1919] P. 95)
it was held that a ship claimed as
the property ol a de facto govern-
ment, only temporarily recognised, '
must be treated in the same way.
Different is the case of a private
vessel which has been requisitioned
or chartered by the Government.
While a ship is in the service of the
Government concerned she is indeed
exempt from ^rrest for claims for
salvage, collision, etc. But claim-
ants are not thereby deprived of
their rights of action, although they
are precluded for the time\being
from exercising some of- the rights
ordinarily incident thereto. See The
Broadmayne, [1916] P. 64; The
Meaaicano, (1916) 32 T.L.R. 519;
and The Grimdon, (1918) 35 T.L.R.
81. But the practice of the
American courts seems to be
different; see Nielsen in A.J., xiii.
(1919), pp. 12-21, and the case of
The Attualita there quoted.
It must be specially mentioned
that, in accordance with Article 281
of the Treaty of Peace with Germany,
if the German Govemnient engages in
international trade, it is not to have
in respect thereof any rights, privi-
leges or immunities of sovereignty ;
similar provisions occur in other
treaties of peace.
MEV-OF-WAE IN FOEEIGN WATERS 615
diction of her flag-State even during her stay in foreign
waters. No ofi&dal of the littoral State is allowed to
board the vessel without special permission of the
commander. Crimes committed on board by persons
in the service of the vessel are under the exclusive juris-
diction of the commander and the other home autho-
rities. Individuals who are subjects of the Uttoral State,
and are only temporarily on board, may, although they
need not, be taken to the home country of the vessel,
to be punished there, if they commit a crime on board.
Even individuals who do not belong to the crew, and
who, after having committed a crime on the territory
of the littoral State, have taken refuge on board, cannot
be forcibly taken oS. the vessel ; if the commander
rrfuses their surrender, it can be obtained only by diplo-
matic means from the home State,^
On the other hand, men-of-war cannot do what they
like in foreign waters. They are expected volimtarily
to comply with the laws of the littoral States with regard
to order in the ports, the places for casting anchor, sani-
tation and quarantine, customs, and the hke. A man-
of-war which refuses to do so can be expelled, and, if
on such or other occasions jhe commits acts of violence
against the officials of the Uttoral State or against other
vessels, steps may be taken against her to prevent
further acts of violence. But it must be emphasised
that, e;ven by committing acts of violence, a man-of-
war does not fall under the jurisdiction of the littoral
State. Only such measures are allowed against her
as are necessary to prevent her from further acts' of
violence.^
' On the qneotirm of aeylnm of the ' B^glement sur le Regime l&gal
foreign men-of-war generally, Bee de» N<tvire» et 'le leurs Kquipage*
Moore, Agylwn in LegSiions amd danti les Porte ^trangeni,' adopted by
OontuiaUi amd Vettde (1892), a re- thelnetituteof International Law, in
print from the Political Science 1898, at it« meeting at the Hague,
Quarterly, vol. vii, of which ArticleB 8-24 deal with
men-of-wiir in foreign waters ; .471-
* Attention ought to be drawn to nuaire, xvii. (1898), pp. 275-280.
616
MISCELLANEOUS AGENCIES
Position § 451. Of some importance is the unsettled question
when on respecting the position of the commander and the crew
AWd. °^ ^ man-of-war in a foreign port when they are on land.
The majority of pubKcists distinguish between a stay
on land in the service of the man-of-war and a stay for
other purposes.^ The commander and members of the
crew ashore in an official capacity in the service of their
vessel, to buy provisions, or to make other arrangements
respecting the vessel, remain under the exclusive juris-
diction of their home State, even for crimes they commit
on the spot. Although they may, if necessary, be
arrested to prevent further violence, they must at once
be surrendered to the vessel. On the other hand, if
they are on land not on official business, but for pur-
poses of pleasure and recreation, they are under the
territorial supremacy of the Httoral State Hke any other
foreigners, and they may be punished for crimes com-
mitted ashore.
There are, however, a mmiber of pubHcists ^ who do
not make this distinction, and maintain that com-
manders, or members of the crew, whilst ashore, are in
every case under the local jurisdiction.
Ill
AGENTS WITHOUT DIPLOMATIC OR CONSULAR CHARACTER
Hall, §§ 103-104*— Moore, iv. § 623— Bluntsohli, §§ 241-243- Ullmann, §§
66-67— Heffter, § 222— Rivier, i. § 44— Calvo, iii. §§ 1337-1339— Tiore,
ii. Nos. 1188-1191— Martens, ii. § 5— Adler, Die Spianage (1906), pp.
63-92 — Routier, V Espionage, et la Trahison en Temps de Paix et en
Temps de Guerre (1915).
<
§ 452. Besides diplomatic envoys and consuls, States
1 So also Moore, ii. § 256. Phillimore, i. § 346 ; Testa, p. 109.
See also Article 18 of the 'R^glement'
• See, for instance, Hall, § 55 ; referred to on p. 615, n. 2.
WITHOUT DIPLOMATIC OR CONSULAR CHARACTER 617
may, and do, send various kinds of agents abroad — Agents
namely, public political agents, secret political agents, Dipio"-^
spies, commissaries, and bearers of despatches. The ^*g°i°r
position of these agents varies according to the class Charao-
to which they belong.
• § 453. Pubhc pohtical agents are agents sent by one PubUo
Power to another for pohtical negotiations of difierent AgentT
kinds. They may be sent for an unhmited time, or for
a limited time only. As they are not invested with
diplomatic character, they do not receive a letter
of credence, but only a letter of recommendation or
commission. They may be sent not only by one full
sovereign State to another, but also by and to insurgents
recognised as a belligerent Power, and by and to States
under suzerainty. Political agents without diplomatic
character afford, in fact, the only means for personal
pohtical negotiations with such insurgents and with
States under suzerainty.
As regards the position and privileges of public pohtical
agents, it is obvious that they enjoy neither the position
nor the privileges of diplomatic envoys.^ But, on the
other hand, they have a pubKc character, being admitted
as pubhc pohtical agents of a foreign State, and must,
therefore, certainly be granted a special protection. No
distinct rules, however, concerning the special privileges
to be granted to such agents seem to have grown up in
practice. Inviolabihty of their persons and official
papers ought to be granted to them.^
§ 454. Secret pohtical agents may be sent for the Secret
same purposes as pubhc pohtical agents. But two AgentT
kiads of secrecy must be distinguished. An agent may
be secretly sent to another Power with a letter of recom-
* Heffter, § 222, is, as far as I diplomatic envoys.
know, the only publicist who main- ' UUmann, § 66, and Rivier, i. § 44,
tains that agents not invested with maintain that they must be granted
diplomatic character must neverthe- the privilege of inviolability to the
less be granted the privileges of same extent as diplomatic envoys.
618
MISCELLANEOUS AGENCIES
mendation, and admitted by that Power. Such an
agent is secret in so far as third Powers do not know,
or are not supposed to know, of his existence. As he is
admitted by the receiving State, although secretly, his
position is essentially the same as that of a pubhc
pohtical agent. On the other hand, an agent may be
secretly sent abroad for political purposes without a
letter of recommendation, and therefore without being
formally admitted by the Government of the State in
which he is fulfilhng his task. Such an agent has no
recognised position whatever according to International
Law. He is not an agent of a State for its relations
with other States, and he is therefore in the same posi-
tion as any other foreign individual living within the
boundaries of a State. He may be expelled at any
moment if he becomes troublesome, and he may be
criminally punished if he commits a pohtical or ordiiary
crime. Such secret agents are often abroad for the
purpose of watching the movements of pohtical refugees
or partisans, or of sociaUsts, anarchists, nihilists, and
the hke. As long as such agents do not turn into so-
called cigents provocateurs, the local authorities will not
interfere.
Spies. § 455. Spies are secret agents of a State sent abroad ^
for the purpose of obtaining clandestinely information
in regard to mihtary or pohtical secrets. Although all
States constantly or occasionally send spies abroad, and
although it is not considered wrong morally, politically,
or legally to do so, such agents have, of course, no recog-
nised position whatever according to International Law,
since they are not agents of States for their international
relations. Every State punishes them severely when
they are caught committing an act which is a crime by
the law of the land, or expels them if they cannot be
' Conoerning spies in time of war, and Adler, Die Spionage (1906),
see below, vol. ii. §§ 159 and 210, pp. 7-62.
misaaries.
WITHO,UT DIPLOMATIC OR CONSULAR CHARACTER 619
punished. A spy cannot legally excuse himself by
pleading that he only executed the orders of his Govern-
ment, and the latter will never interfere, since it cannot
officially confess to having commissioned a spy.
§ 456. Commissaries and members of commissions Com-
are agents sent with a letter of recommendation or com-
mission by one State to another for negotiations, not
pohtical, but of a technical or administrative character
only ; for instance, to make arrangements between
the two States as regards railways, post, telegraphs,
navigation, dehneation of boundary hues, and so on.
A distinct practice of guaranteeing certain privileges to
commissaries has not grown up, but inviolability of
their persons and official papers ought to be granted
to them, as they are officially sent and redeived for
official purposes. Thus Germany, in 1887, in the case
of the French officer of poKce, Schnaebele, who was in-
vited by local German functionaries to cross the German
frontier for official purposes, and then arrested, recog-
nised the rule that a safe-conduct is tacitly granted to
foreign officials when they enter the territory of a State
in an official capacity with the consent of the local
authorities, although Schnaebele was not a commissary
sent by his Government to the German Government.
§ 457. Individuals commissioned to carry official Bearers
despatches from a State to its head or to diplomatic patches,
envoys abroad are agents of that State. Despatch-
bearers who belong to the retinue of diplomatic envoys
as couriers must enjoy, as stated above (§ 405), exemp-
tion from civil and criminal jurisdiction, a special pro-
tection in the State to which the envoy is accredited,
and a right of innocent passage through third States.
But bearers of official despatches who are not in the
retinue of the diplomatic envoys emplojdng them must
nevertheless be granted inviolability for their person
and official papers, provided they possess special pass-
sions,
620 MISCELLANEOUS AGENCIES
ports stating their ofl&cial character as despatch-bearers.
And the same is vaKd respecting bearers of despatches
between the head of a State who is temporarily abroad
and his Government at home.
IV
INTERNATIONAL COMMISSIONS
Rivier, i. pp. 564-566— UUmann, § 68— Gareis, §§ 51-52— Liszt, § 16—
Moore, iv. § 623.
Perma- § 458. International commissions consist of persons
contra" delegated by two or more States to carry out functions
distinc- of international importance. A distinction must be
tion to . ^ . . ^ . .
Tern- made between temporary mternational commissions
Comma- which dissolvc as soon as their purpose is accomplished,^
and are very frequently estabUshed, and permanent
international commissions. Temporary international
commissions may be set up for all manner of pur-
poses— ^inquiry into disputes, delimitation of frontiers,
arrangement of all kinds of administrative questions
such as railways, ports, telegraphs, navigation and the
hke. Among them may be mentioned commissions of
inquiry, appointed in pursuance of the Hague Con-
ventions of 1899 and 1907,^ or of the Labour Convention
which forms part of the Treaties of Peace,^ and the
many temporary commissions, estabhshed by these
treaties.^ Permanent international commissions have
been instituted by the Powers ^ in the interest of free
' The position of their members (Reparation Commission). There are
has been diaoussed above, § 456. many others.
^ See below, vol. ii. § 5. ° Only such permanent oommis-
^ See Treaty of Peace with Ger- aions are mentioned in the text as
many. Article 412, and below, § 568«. have been instituted by the Powers
* See, for example, the Treaty of in conference. There are, however.
Peace with Germany, Articles 203 many permanent commissions in
(Inter-Allied Commissions of Con- existence which have been instituted
trol to supervise the Execution of the by neighbouring Powers for local
Military, Naval, and Air Clauses), purposes, as for example : (1) The
215 (Repatriation Commission), 233 American - Canadian International
INTERNATIONAL COMMISSIONS 621
navigation on international rivers and the Suez Canal ^ ;
in the interest of international sanitation ; in the interest
of the foreign creditors of several States unable to pay
the interest on their stocks ; concerning bounties on
sugar ; to advise the Council of the League of Nations ;
in the interests of labour ; and in the interests of air
navigation. It is provided by the Covenant of the
League of Nations (Article 24) that all commissions for
the regulation of matters of international interest which
are constituted after January 10, 1920, are to be placed
under the direction of the League.
As regards the privileges to be granted to the members
of either temporary or permanent international com-
missions, as was stated above, § 456, no distinct practice
has grown up. If the treaty by which a commission
is constituted does not stipulate anything as regards
such privileges, none need be granted, but the persons
of the commissioners must be specially protected. How-
ever that may be, there is no doubt that they cannot,
unless this be specially stipulated, claim the privileges
of diplomatic envoys. Thus, when in 1796 Gore and
Pinkney,^the American commissioners in London under
Article 7 of the Jay Treaty, claimed these privileges.
Great Britain refused to concede them.
§ 459. Several international commissions have been Com-
T -ji-j_j_i? • j^' ir missions
agreed upon m the mterest of navigation — namely, for in the
the rivers Danube, Rhine, Elbe and Oder, and for the J" ^Ivt
Suez Canal. gation.
1. With regard to navigation on the Danube, the
Fisheries Commission, instituted Commission between the United
according to Article 1 of the Treaty States, Canada, and Newfoundland,
of Washington of April 11, 1908; instituted in consequence of the
see Treaty Ser. (1908), No. 17. award of the Hague Court of Arbitra-
(2) The American-Canadian Inter- tion in the North Atlantic Fisheries
national Joint Commission eonoern- case.
ing boundary waters, instituted by ^ The Treaty of Peace with Turkey
Articles 7-12 of the Treaty of is to establish an international Corn-
Washington of January 11, 1909; mission to control the Bosphorus and
see Treaty Ser. (1910), No. 23. the Dardanelles.
(3) The Permanent Mixed Fisheries ' See Moore, iv. § 623, p. 428.
6^ MBCELLAXBOFS AGKXCIES
European Danube Commission was instituted bv Article
16 of tlie Peace Treaty of Paris in 1S56. This commis-
sion, whose members were appointed by the signatoiy
Powejs of the Treaty of Paris, was reconstituted by the
Berlin Conference in 1S7S and again by the Conference
of London in 1883. The commission was to be totally
independent of the teiritoiial Governments, its rights
were clearly defined, and its members, offices, and archives
were to enjoy the privilege of inviolability. The juris-
diction of the European Danube Commission extended
from Ibiaila downwards to the mouth of the river.^
The Conference of 1883 also sanctioned regulations^ in
regard to the navigation and river-police of the Danube
from the Iron Gates down to Ibiaila, and, by Article 96
of these regulations, instituted the Mixed Commission
of the Danube to enforce the obser^-ance of the regula-
tions. The members of this commission were dele-
gates from Austria-Hungary, Bulgaria, Eoumania,
Serbia, and the European Danube Commission — one
member from each.*
But matters have changed since the World War.
The Treaties of Peace foreshadow a thorou^ revision of
the existing regime, and in the meantime the temporary
arrangements made at the Peace Conference at Paris
in 1919 are to be applied. The European Commission,
provisionally constituted of representatives of Great
Britain, Prance, Italy, and Roumania only, is to re-
assume tie powers which it possessed before the World
War. Prom Uhn down to IbraUa, where the jurisdic-
tion of the European Commission begins, the Danube
system is to be placed under the control of a new inter-
national commission. This new commission is to under-
take the administration of the rivex system according to
the provisional rules for international rivers laid down
» Deteiils in IViss, i. §§ ISO-l.ii p. 394.
• Martens, X.R.O., 2ud Ser. ii. ' DetaiU in Tvri^ § ISS.
INTERNATIONAL COMMISSIONS 623
in the Treaties of Peace ^ until the impending revision of
existing arrangements, already referred to, is complete.^
2. With regard to the Rhine, navigation was before
the World War governed by the Convention of Mann-
heim of 1868,^ under which a Central Commission had
been established. But for the Rhine also the Treaties
of Peace foreshadow a revision of the jirrangements
which existed before the World War, by agreement
between the Allied and Associated Powers and Holland,
and the task of preparing and submitting the project of
revision is entrusted to the Central Commission pro-
vided for by the Convention of Mannheim, but now to
be constituted in accordance with the Treaty of Peace
with Grermany. In the meantime the Central Com-
mission is to continue to fulfil the duties assigned to it
by the Convention of Mannheim as modified and supple-
mented by the Treaty of Peace with Germany.*
3. As regards rivers which have for the first time
become international as the result of the World War,^
the Elbe and the Oder, and upon the request of any
riparian State, the Niemen, are to be placed under the
administration of international commissions.^
4. By Article 8 of the Treaty of Constantinople of
1888 in regard to the neutralisation of the Suez Canal,
a commission was instituted for the supervision of the
execution of that treaty.'
§ 460. Three international commissions had been
established before the World War in the interest of
sanitation. For the purpose of supervising the sanitary
' See above, § 178. regard to navigation on the Congo
* See Treaty of Peace with Ger- river, and agreed upon an inter-
many. Articles 346-352. national commission to enforce their
* See above, § 178. observance. (See Calvo, i. § 334.)
* See Treaty of Peace with Ger- Bnt this commission was never set
many, Articles 354-362. up, and no provisions for the
' See Treaty of Peace with (Jer- establishment of a commission are
many, Articles 340-345. contained in the Convention of
* The Powers represented at the September 10, 1919, which repeals
Berlin Congo Conference of 1884 the Brussels General Act of 1885.
sanctioned certain regulations in ' See above, § 183.
624
MISCELLANEOUS AGENCIES
Commis- arrangements in connection with the navigation on the
the In- lower part of the Danube, the International Council
Sta°* °^ Sanitation was instituted at Bucharest in I88I.1
tion. A Conseil superieur de sante at Constantinople had the
task of supervising the arrangements concerning cholera
and plague. A Conseil sanitaire maritime et quaran-
tenaire at Alexandria had similar tasks and was subject
to the control of the Conseil superieur de sante at Con-
stantinople.^ No information as to the position of
these commissions since the World War seems to have
been pubUshed.
Commis- § 461. Three international commissions have been
the"in° estabhshed in the interest of foreign creditors — ^namely,
terest of ^^ Turkey since 1878, in Egjrpt since 1880, and in Greece
Creditors, siuce 1897.^
Perma- § 462. Aiticle 7 of the Brussels Convention of 1902
mission™ conccming bounties on sugar, provided for a permanent
oonoern- commission at Brussels,^ which is beUeved to be in
mg Sugar.
abeyance.
Perma- § 462a. Under the Covenant of the League of Nations,
nentCom- . , • • , i • j. i j.
missions two permanent commissions are to be appomted to
to^advise ^dvise the Council of the League, one on mihtary, naval.
League of and atr questions, and the other on the observance of
Nations. n , k
mandates."
Perma- § 4626. Under the Labour Convention which forms
mission™ part of the Treaties of Peace, a governing body of twenty-
interest ^^^^ members is to be appointed to control the Inter-
of Labour, national Labour Office.®
Perma- 8 462c. The International Air Convention of October
Inter- 13, 1919, establishes an international commission for air
national
Commis- ^ See Article 6 of the ' Aote addi- StaaUschvld (1891) ; Murat, Le Oon-
sion for tionnel k 1' Aote public du 2 novembre trdle international sur lea Finances de
Air Navi- 1865 pour la Navigation des Embou- I'ilgypte, de la Orice et de la Turquie
gatidn. churesdu Danube,' signed on May 28, (1899); Lippert, Das intemationale
1881 ; Martens, N.E.G., 2nd Ser. Finanzrecht (1912), pp. 912-948.
"""i'l?'.^/" • T ■ . s ,« - ' See below, § 585 (3).
^ Details in Liszt, § 16, m. 5 a , otj.
» See Kaufmann, Das inter- See above, § 167A.
nationale Recht der aegyptiichen ' See below, § 568t.
INTERNATIONAL OFFICES 625
navigation to be under the direction of the League
of Nations. Its chief duties have already been men-
tioned.^
INTERNATIONAL OFFICES
Rivier, i. pp. 564-566— Nys, ii. pp. 314-318— UUmann, § 69— Liszt, § 17—
Gareis, § 52 — Desoamps, Les Offices intemationaux et lew Avenir (1894)
— Guillois in R.G., xxii. (1915), pp. 5-127.
§ 463. During the second half of the nineteenth cen- Character
tury and the early years of the twentieth century, a national
great number of general treaties were entered into by ^^°^^-
a greater or lesser number of States for the purpose of
settUng in common certain non-pohtical matters. These
general treaties created so-called unions among the
parties, and the business of these unions is in most cases
transacted by international offices created specially for
that purpose. The functionaries of these offices, how-
ever, ordinarily enjoy no privilege whatever.
At the end of the World War many new international
administrative offices were set up, as well as the Per-
manent Secretariat of the League of Nations,^ which is
the office of the organised Family of Nations. More-
over, in order to avoid the drawbacks which result from
the existence of a number of separate and disconnected
international offices, it is provided by the Covenant of
the League (Article 24) that all international offices
already estabhshed by general treaties, if the parties to
such treaties consent, and all international offices set
up in future, are to be placed under the direction of
the League.
The most important international offices in exist-
ence before the World War are here enumerated,^
' See above, § 197c. of Arbitration, which, although an
' See above, § 167ff. international office, has no relation
' " to those here disouBSed. See below,
' Except the International Bureau § 474.
VOL. I. 2b
626
MISCELLANEOUS AGENCIES
together with those which are provided for by treaties
made since the close of hostiUties.^
Inter- § 464, In 1868 the International Telegraph Office of
national , i -, . i -r*
Telegraph the International Telegraph Union was created at Berne.
™' It is administered under the supervision of the Swiss
Bundesrath. It edits Le Journal TMegraphiqye in
Prench.2 This office also serves as the office of the
International Union for Radiotelegraphy.^
Inter- § 465. The pendant of the International Telegraph
Post Office is the International Post Office of the Universal
Office. Postal Union created at Berne in 1874. It is admini-
stered under the super^osion of the Swiss Bimdesrath,
and edits a monthly paper, L' Union Postcde, in French,
Grerman, and Enghsh.*
Inter- § 466. The States which have introduced the metric
Office of system of weights and measures created in 1875 the
Weights International Office of Weights and Measures in Paris.
Measures. Its functionaries are a director and several assistants.
Their task is the custody of the international prototypes
of the metre and Mlogramme, and the comparison of
the national prototypes with the international.^
Inter- § 467. In 1883 an International Union for the Pro-
Officefor tection of Industrial Property, and in 1886 an Inter-
teotim°of tional Union for the Protection of Works of Literature
Works of and Art, were created, with an international office in
ture and Beme. There are a secretary-general and assistants,
^ns°riai ^^° ^^'^ ^ monthly paper, Le Droit d'Auteur, in French.®
Property. § 467a. The first Pan-American Conference of 1889
• The juristic character of these Fusinato, Avis rur let QuestioM
offices, other than those which form touchant la Perswialite juridique de
part of the organisation of the I'Institut international d'Agriculture
League of Nations, is hard to define. (1914), fitly characterises them as
Although they are under the juris- international juristic persons, al-
diction of the States on whose though it must be emphasised that
territory they are constituted, they they are not subjects of any inter-
are not constituted by them, and national rights,
their laws are only applicable to ' See below, § 582 (2).
such offices in so far as the treaties ' See below, § 582 (4).
which called them into existence * See below, § 582 (1).
are silent. Since they are consti- * See below, § 588 (1).
tuted by international treaties, ' See below, §§ 584 and 585 (2),
ENTEBNATIONAL OFFICES 627
created ' The American International Bureau,' which, The Pan-
since the fourth conference of 1910, bears the name uSo"?™
' The Pan-American Union.' There are a director, an
assistant director, and several secretaries. This office ^
publishes a paper. The Monthly Bulletin.
§ 468. In accordance with the General Act of the Former
Anti-Slavery Ck)nference of Brussels, 1890, the Inter- osoe'r
national Maritime Office at Zanzibar and the ' Bureau Zanzibar,
Special,' attached to the Belgian Foreign Office at Bureau
Brussels, were estabhshed ; ^ but the provisions of the BTOsseis**
Brussels General Act which set up these offices do not
reappear in the Convention of September 10, 1919, which
revised and repealed the Brussels General Act ; their
work seems to have been completed.
§ 469. The International Union for the Publication inter-
of Customs Tariffs, concluded in 1890, created an inter- SffiiT^f
national office ^ at Brussels. There are a director, a S"^*£™^
U? 8)1^1 ffs
secretary, and translators. The o&ce edits LeBull^indes
Dotfowes in French, German, Enghsh, Italian, and Spanish.
§ 470. Nine States — namely, Austria - Himgary, central
Belgium, France, Germany, HoUand, Italy, Luxemburg, i^°^
Russia, Switzerland — entered in 1890 into an inter- national
national convention in regard to transports and freights ports!
on railways and created the ' Office Central des Trans-
ports * Intemationaux ' at Berne.
§ 471. The States which concluded on March 5, 1902, Pennan-
at Brussels the Convention concerning Bounties on ^ t^e^"*
Sugar,® in compUance with Article 7 of this convention, ^"sar
instituted a permanent office at Brussels. The tasktion.
of this office, which was attached to the permanent com-
mission,^ also instituted by Article 7, was to collect,
translate, and publish information of all kinds respect-
ing sugar ; but it appears to be in abeyance.
^ See below, § 595. * See below, § 583 (1).
^ See below, § 592 (1). ' See below, § 685 (3).
• See below, § 585 (1). * See above, § 462.
628 MISCELLANEOUS AGENCIES
Agrioui- § 471a. In 1905 the Agricultural Institute ^ was
Institute, established at Rome. It consists of a General Assembly
and a Permanent Committee with a general secretary.
Inter- § 4716. jn 1907 the International Health Office 2
national itit ■ t
Health was estabhshed at Pans. It consists 01 a director, a
°®' general secretary, and a number of clerks. It pubhshes
at least once a month a bulletin in French.
Inter- § 471c. The treaties which constitute the resettle-
Labo^^ ment after the World War have instituted a number of
Office. new international offices, which, in accordance with the
Covenant and the express terms of the treaties them-
selves, are to be under the direction of the League of
Nations.
The Labour Convention embodied in the Treaties of
Peace ^ estabhshed an International Labour Office at
the seat of the League of Nations as part of the organisa-
tion of the League. The office is to be under the general
control of the governing body, but under the immediate
supervision of a director. Its stafi is to consist of both
men and women. Its principal functions are to coUect
and distribute information relating to the conditions of
industrial Uf e and labour, to prepare the agenda for the
labour conferences, to carry out certain duties in con-
nection with international disputes regulated by the
Labour Convention, and to pubhsh a periodical paper
on the problems of international industry and employ-
ment.
Central § 4:71d. The Convention for the Control of the Trade in
Ofl^e. Arms and Ammunition,^ signed on September 10, 1919,
provides for the estabUshment of a central international
office, under the control of the League of Nations, to
coUect and preserve documents exchanged by the parties
with regard to the trade in, and distribution of, the arms
and ammunition specified in the convention.
1 See below, § 586 (1). ' See below, § 568»".
• See below, § 590 (6). * See below, § 568c.
THE INTERNATIONAL COURT OF ARBITRATION 629
§ 471e. The Convention relating to the Liquor Traffic Central
in Africa/ signed on September 10, 1919, provides for offior
the establishment of a central international office,
under the control of the League of Nations, for collect-
ing and preserving documents of all kinds exchanged
by the parties with regard to the importation and
manufacture of spirituous Hquors, so far as regulated
by the convention.
VI
THE INTERNATIONAL COURT OP ARBITRATION
Lawrence, § 221— Bonflls, No. 970'— Despagnet, Nos. 736-740— Hershey,
Nos. 314-316 — Tettenborn, Das ffaagerichiedagericht (1911) — Sohtioking,
Der Staatenverband der Haager Gonferenzen (1912), pp. 39-66 — Kohler
in Z. v., vii. (1913), pp. 113-122— Myers in A.J., viii. (1914), pp. 769-801,
and X. (1916), pp. 270-311.
§ 472. In compliance with Articles 20 to 29 of the Organiaa-
first Hague Convention for the peaceful adjustment of courUn
international differences, the contracting Powers in general.
1900 organised the International Court of Arbitration
at the Hague. This organisation ^ comprises three
distinct bodies — namely, the Permanent Administra-
tive Council of the Court, the International Bureau of
the Court, and the Court of Arbitration itself. But a
fourth body must also be distinguished — namely, the
Tribunal to be constituted for the decision of each case.
Articles 20 to 29 were replaced by Articles 41 to 50 of
* See below, § 566. hoped that the work begun at the
^ The editor does not know what Hague would thereby receive new
view the author would have taken impetus ; and this is perhaps the in-
as to the future prospects of the tention of the Covenant, which sets
organisation set up at the Hague up no new Court of Arbitration, but
under the Hague Conventions to provides (Article 13) that the court
deal with international disputes in to which disputes are referred ' shall
the light of the establishment of the be the Court agreed on by the parties
League of Nations. He believes, to the dispute or stipulated in any
however, that the author would have convention existing between them, '
630 MISCELLANEOUS AGENCIES
the corresponding convention produced by the second
Hague Peace Conierence of 1907.
The Per- § 473. The Permanent Council (Article 49) consists
manent of the diplomatic envoys of the contracting Powers
accredited to Holland and the Dutch Secretary for
Foreign Affairs, who acts as president of the Council.
The task of the Council is to control the International
Bureau of the Court, to appoint, suspend, and dismiss
the employes of the bureau, to fix the payments and
salaries, control general expenditure, and decide all
questions of administration with regard to the busi-
ness of the Court. The Council has, further, the task of
furnishing the contracting Powers with a report of the
proceedings of the Court, the working of the adminis-
tration, and the expenses. At meetings duly summoned,
the presence of nine members is sufficient to give the
Council power to deUberate, and its decisions are taken
by a majority of votes.
Theinter- § 474. The International Bureau (Article 43) serves
BureTu.^ as the registry for the Court. It is the intermediary
for communications relating to the meetings of the
Court. It has the custody of the archives, and the
conduct of all the administrative business of the Court.
The contracting Powers have to furnish the Bureau
with a certified copy of every stipulation concerning
arbitration arrived at between them, and of any award
rendered by a special tribunal in which they are con-
cerned. They hkewise have to communicate to the
Bureau the laws, regulations, and documents, if any,
showing the execution of the awards given by the Court.
The Bureau is (Article 47) authorised to place its pre-
mises and its staff at the disposal of the contracting
Powers for the work of any special ^ tribunal of arbi-
tration, not constituted within the International Court
of Arbitration. The expense (Article 50) of the Bureau
* See below, vol. ii. § 20.
THE INTERNATIONAL COURT OP ARBITRATION 631
is borne by the contracting Powers, in the proportion
established for the international office of the Inter-
national Postal Union.
§ 475. The Court of Arbitration (Article 44) consists The Court
of a large number of individuals ' of recognised com- tration.
petence in questions of International Law, enjoying the
highest moral reputation,' selected and appointed by
the contracting Powers. Each Power may appoint not
more than four members ; two or more Powers may
unite in the appointment of one or more members ; and
the same individual may be appointed by different
Powers. Every member is appointed for a term of six
years, but his appointment may be renewed. The place
of a resigned or deceased member is to be refilled by the
respective Powers, and in this case the appointment is
made for a fresh period of six years. The names of
the members of the Court thus appointed are enrolled
upon a general list, which is to be kept up to date and
communicated to all the contracting Powers. The
Court thus constituted has jurisdiction over all cases of
arbitration, unless there shall be an agreement between
the parties for a special tribunal of arbitrators not
selected from the list of the members of the Court
(Article 42).
§ 476. The Court of Arbitration does not as a body The De-
decide the cases brought before it ; a Tribunal is created Triblfnai.
for every special case by selection of a number of arbi-
trators from the Kst of the members of the Court, This
Tribunal (Article 45) may be created directly by agree-
ment of the parties. If this is not done, the Tribunal
is formed in the following manner : each party selects
two arbitrators from the list, of whom one only can be
its national or chosen from the persons appointed by it
as members of the Permanent Court, and the four arbi-
trators so appointed choose a fifth as umpire and
president. If the votes of the four are equal, the parties
632 MISCELLANEOUS AGENCIES
entrust to a third Power the choice of the umpire. If
the parties cannot agree in their choice of such third
Power, each party nominates a different Power, and
the umpire is chosen by the united action of the Powers
thus nominated. If within two months' time these two
Powers cannot come to an agreement, each of them
presents two candidates from the Hst of members of
the Permanent Court, exclusive of the members selected
by the parties, and not being nationals of either of them.
Which of the candidates thus presented shall be the
umpire is determined by lot.
When the Tribunal is so constituted, the parties com-
municate to the International Bureau of the Court the
names of its members and fix a time for its meeting. The
members of the Tribunal must be granted the privileges
of diplomatic envoys when discharging their duties
outside their own country (Article 46). The Tribimal
sits at the Hague (Article 43), and, except in case of
force majeure, the place of session can only be altered
by the Tribunal with the assent of the parties, but the
parties can from the beginning designate another place
than the Hague as the venue of the Tribunal (Article 60).
The expenses of the Tribunal are paid by the parties in
equal shares, and each party pays its own expenses
(Article 85).i
The following ■ awards ^ have hitherto been given by
the Permanent Court of Arbitration : —
(1) On October 14, 1902, in the case of The United States of
America v. Mexico, concerning les Fonds pieux des Califomies.^
(2) On February 22, 1904, in the case of Germany, Great
Britain, and Italy v. Venezuela, concerning certain claims of
their subjects.*
' The procedure to be followed Hague Court Reports (1916).
by, and before, the Tribunal is ' Martens, ^. iJ.G., 2nd Ser.xxxii.
described below, vol. ii. § '21. p. 193.
^ See WiUon, The Hague Arhi/rn- 'Martens, N.S.G., 3rd Ser. i.
tion Cases (1915), and Soott, Tlie p. 57.
THE DfTEKNATIONAL COUET OF ARBITRATION 633
(3) Qa May 22, 1905, in the case of Germany, France, and
Great Britain v. Japan, concerning the interpretation of Article
18 of the treaty of April 4, 1896, and of other treaties.*
(4) On Angast 8, 1905, in the case of France v. Great Britain,
oonceming the Muscat Dhows.^
(5) On May 22, 1909, in the case of Germany y. France, con-
oeming the Gasa Blanca incident.^
(6) On October 23, 1909, in the case of Norway v. Sweden, con-
cerning the question of their maritime frontier.*
(7) On September 7, 1910, in the case of The United States of
America v. Great fin to»n, concerning the North Atlantic Fisheries.^
(8) On October 25, 1910, in the case of The United States of
America v. Venezuda, concerning the claims of the Orinoco
Steamship Co.^
(9) On February 24, 1911, in the case of France v. Great
Britain, concerning the British-Indian Savarkar.'
(10) On May 3, 1912, in the case of IteUy v. Peru, concerning
the ckum of the brothers Canevaro.*
(11) On November 11, 1912, in the case of Riissia v. Turkey,
concerning interest claimed on behalf of Russians for delay in
payment of compensation for damages sustained during the
Russo-Turkish War in 1877-1878.9
(12 and 13) On Ifey 6, 1913, in the cases of France v. Italy,
concerning the seizure of the French vessels, Carthage and
Manouba, during the Turco-Italian War in 1911.*"
(14) On June 25, 1914, in the case of The Netherlands v.
Portugal, concerning a boundary in the Island of Timor.**
* Martens.^.ii.G'., 2nd Ser. XXXV. " Martens, N.R.O., 3rd Ser. vi.
p. 376. p. 54.
' Martens, JV.fi.G., 2nd Ser. xxxT. ' Martens, X.R.O., 3rd Ser. \i.
p. 356. p. 653.
' Martens. 2f.R.O., 3rd Ser. ii. " Martens, N.R.O., 3rd Ser. viii.
p 19 pp. 174 and 179. The French
'« jkartens, N.R.6., 3id Ser. iii. *°* l^^f'' ^,^!!^™*!u^^ *^?
gg snbmitted to arbitration the case of
\ J, ^ „ „ „ „ J o - the seizure of the vessel Tavignano.
'Martens, N.R.O., 3rd Ser. iv. jj^^ „„ ^^^ ^^^ ^^ ^^^^ ^ ^j^^
P" case, as the Governments at issue
Martens, N.R.O., 3rd Ser. iv. agr^ to settle the matter ont of
P- 79. court See Martens, N.R.O., Srd
' Martens, N.R.O., 3rd Ser. iv. Ser. viii. p. 172.
P- 744. " A.J., ix. (1915), p. 240.
634
MISCELLANEOUS AGENCIES
VII
THE PROPOSED INTERNATIONAL PRIZE COURT ANB THE
PROPOSED INTERNATIONAL COURT OF JUSTICE
Lawrence, § 192 — Nys, ii. p. 577— Despagnet, No. 683 bia — Hershey, No. 317
—Gregory in A. J., ii. (1908), pp. 458-475— Soott, The Hague Peace
Conferences (1909), i. pp. 465-511 and 423-464, and in A.J., v. (1911),
pp. 302-324, and vi. (1912), pp. 316-358— Wehberg, Dat Problem einea
intemationalen Staatengerichtehofes (1912) — Proceedingt of the American
Society of International Law, vi. (1912), pp. 144-178 — Sohramm, Das
Prisenrecht (1913), § 19 — Lammasoh, Die Lehre von der SchiedagericMa-
barheit (1913), pp. 137-146 — Strupp, Die intemationale Schiedagerichta-
barkeit (1914), p. 84— Baloh, A World Court in the Light of the United
States Supreme Court (1918)— Reinsoh in A.J., v. (1911), pp. 604-614—
Lehr in R.I., 2nd Ser. xvi. (1914), pp. 137-156— Soott, The Statm of the
International Court of Justice (1916).
The Pro- § 476a. Convention xii. of the second Hague Peace
Inter- Conference of 1907 provided for the establishment of
national an International Prize Court at the Hague, and when
Court, the last edition of this work was pubhshed it was antici-
pated that this court would be set up. But the con-
vention failed to secure ratification. The court was
to have consisted of fifteen judges and fifteen deputy
judges, appointed for a period of six years. Of the
fifteen judges nine were to constitute a quorum ; a judge
who was absent or prevented from sitting was to be
replaced by his deputy judge. Each contracting Power
was to appoint one judge and one deputy judge, and
the judges appointed by Great Britain, Germany, the
United States of America, Austria-Hungary, France,
Italy, Japan, and Russia were always to be summoned
to sit, whereas the judges appointed by the other con-
tracting Powers were to sit by rota, as shown in the
table annexed to the convention. If a belhgerent
Power had, according to the rota, no judge sitting in
the court, it had the right to ask that the judge appointed
by it should take part in the settlement of all cases
arising from the war ; lots were then to be drawn as to
PROPOSED INTERNATIONAL COURTS 635
which of the judges entitled to sit according to the rota
should withdraw, but this arrangement was not to affect
the judge appointed by the other belligerent. The
belligerent captor was to be entitled to appoint a naval
officer of high rank to sit as assessor, but with no voice
in the decision ; a neutral Power, which was a party
to the proceedings or whose national was a party, was
to have the same right of appointment. The seat of the
International Prize Court was to be at the Hague.
As the convention remained unratified, no such court
had been established when the World War broke out,
and no further steps have been taken with regard to it.
§ 4766. Valuable as has been the Permanent Court of The Pro-
Arbitration at the Hague, it must be pointed out that it inter-
is not a real court of justice. For, in the first place, it is CQ*j°"of
not itself a deciding tribunal, but only a list of names, Juatioe.
out of which the parties in each case select, and thereby
constitute the court. Secondly, experience teaches ^
that a court of arbitration endeavours rather to give
an award ex aequo et bono, which more or less pleases
both parties, than to decide the conflict in a judicial
manner, by simply applying strict legal rules, without
any consideration as to whether, or not, the decision
will please either party. Thirdly, since in conflicts to
be decided by arbitration the arbitrators are selected by
the parties on each occasion, there are in most cases
different individuals acting as arbitrators, so that there
is no continuity in the administration of justice.
For these reasons it would be of the greatest value
to institute, side by side with the Permanent Court of
Arbitration, a real International Court of Justice, con-
' Baloh (Arhitraiion as a Term of between the parties any more than
InUnioUionai Law, reprinted from do permanent raunioipal oourta.
the Golvmhia Law Review, 1915) On pp. 34-36 he makes some valu-
oontests this widely aooepted state- able suggestions for ensuring that
ment, and maintains that arbitra- in future courts of arbitration should
tion courts have not in the past not allow political considerations to
attempted to make a compromise enter into their decisions,
636 MISCELLANEOUS AGENCIES
sisting of a number of judges in the technical sense of
the term, who are once for all appointed, and would have
to act in each case that the parties chose to bring before
the court.i Such a court would only take the legal
aspects of the case into consideration, and would base
its decision on purely legal dehberations. It would
secure continuity in the administration of international
justice, because it would in each case consider itseLE
bound by its former decisions. It would, in time, build
up a valuable practice, by deciding innumerable con-
troversies which as yet haunt the theory of International
Law. The second Hague Peace Conference of 1907
discussed the question of creating such a court, but
only produced the draft of a convention concerning
the subject, which spoke of the creation of a judicial
' arbitration ' court, and thereby obhterated the boun-
dary line between the arbitral and the strictly judicial
decision of international disputes.
However, there was no doubt that new attempts
would be made to bring about the establishment of an
International Court of Justice, in contradistinction to
the Permanent Court of Arbitration, for the parties to
a conflict frequently hesitate to have it settled by arbi-
tration, whereas they would be glad to have it settled
by a strictly judicial decision of the legal questions
involved. In the same year, 1907, Costa Kica, Guate-
mala, Honduras, Nicaragua, and San Salvador estab-
lished the ' Central American Court of Justice ' at
Cartago, consisting of five judges.^ This court was
never of more than local importance, and it came to
an end in 1918 ; ^ but it is of interest as having been the
first of its kind.
' Dlflferent from this court would PrivatUagen (1911) ; see also Bar in
be an International court of justice Z.I., vii. (1913), pp. 429-437.
for the settlement of money claims o „ , r ■■ /inno> o i t.
of private individuals against foreign ' See^.J-.,!!. (1908), Supplement,
States, as proposed by Wehberg, P'
Ein Intemationaler Qerichtshof fur ' See^./., xii. (1918), p. 380.
PROPOSED INTERNATIONAL COURTS 637
A far more important attempt to establish an Inter-
national Court of Justice is now being made. Article
14 of the Covenant of the League of Nations directs the
Council to formulate plans for the establishment of
such a court, to hear and determine any dispute of an
international character which is submitted to it, and
to give an advisory opinion on any matter referred to
it by the Council or by the Assembly. Accordingly, on
February 13, 1920,^ the Council resolved to invite a
committee of international jurists to prepare plans for
the court, and this committee is now sitting (June
1920). The Treaties of Peace have in many cases pro-
vided that any dispute which should arise with regard
to particular matters dealt with by them should be
referred to this court when it has been estabhshed.^
' See The Times, February 14, 1920. p. 324) also proposes the establish-
^ The desire to secure the exeou- ment of a special ' international '
tion of arbitral awards, and the State, on whose territory the inter-
desire to protect the territories of national police force should be
neutrals from encroachments by stationed. It need hardly be stated
powerful belligerents, have led, on that these, and similar, proposals are
the part of some imaginative writers, Utopian. The idea of establishing
to the proposal to establish an inter- an international court with an
national police force. See VoUen- international army and navy to
hoven in R.I., 2nd Ser. xiii. (1911), execute its judgments was put
pp. 79-85; EysingainZ.F.,v. (1911), forward by Waldstein, The Expan-
pp. 527-534 ; Erich in Z. V. , vii. sion of Western Ideals arid the World's
(1913), pp. 308-325. Erich (loe. cit., Peace (1899), pp. 110-112.
PART IV
INTERNATIONAL TRANSACTIONS
CHAPTER I
ON INTEENATIONAL TRANSACTIONS IN GENERAL
I
NEGOTIATION
Hefffcer, §§ 234-239— Ge£foken in HoUzendorff, iii. pp. 668-676— Liszt, § 20
— Ullraann, § 71— Bonfils, Nos. 792-795— Pradier-Fod^ri, iii. Nos.
1354-1362— Rivier, ii. § 45— Calvo, iii. §§ 1316-1320, 1670-1673.
§ 477. International negotiation is the term for such Conoep-
intercourse between two or more States as is initiated, Negotia-
and directed, for the purpose of effecting an under- *^°°-
standing between them on matters of interest. Since
civilised States form a body knit together through their
interests, such negotiation is, in some shape or other,
constantly going on. No State of any importance can
abstain from it in practice. There are many other
international transactions,^ but negotiation is by far
the most important of them. And it must be empha-
sised that negotiation, as a means of amicably settHng
conflicts between two or more States, is only a particular
kind of negotiation, although it will be specially dis-
cussed in another part of this work.^
§ 478. International negotiations can be conducted Parties to
by all such States as have a standing within the Family ^of"*'*'"
of Nations. FuU sovereign States are, therefore, the
regular subjects of international negotiation. But it
' See below, §§ 486-490. * See below, vol. ii. §§ 4-6.
VOL. I. 2S 8«
642 DiTEENATIONAL TRANSACTIONS IN GENEEAL
would be wrong to maintain that States which are not
fully soveieign can never be parties to international
negotiatioDB. For they can indeed conduct nego-
tiations on those points concerning which they have a
standing within the Family of Nations. Thus, for
instance, while Bulgaria was a half sovereign State,
she was nevertheless able to negotiate on several matters
with foreign States independently of Turkey .^ Or
they may be separately represented at an international
conference. For instance, the British Dominions —
Canada, Australia, South Africa, New Zealand, and
India — ^were separately represented at the Peace C!on-
ference at Paris in 1919.
It must be specially mentioned that negotiation
between a State, on the one hand, and, on the other, a
party which is not a State, is not international n^otia-
tion, although such party may reside abroad. Thus,
negotiations between a State and the Pope, and the
Holy See, are not international n^otiations, although
all the formalities connected with iutemational nego-
tiations are usually observed in this case. Thus, too,
negotiations between States and a body of foreign
bankers and contractors concerning a loan, the building
of a railway, the working of a mine, and the like, are
not international negotiations.
Pnrposeof § 479. N^otiations between States may have various
ti^i^°*^ purposes. Their purpose may be only an exchange of
views on some political question ; or it may be an
arrangement as to the line of action to be taken in
future with regard to a certain point, or a settlement of
differences, or the creation of international institutions,
such as the Universal Postal Union for example, and
so OIL Of the greatest importance are those n^otJa-
tions which aim at an understanding between members
of the Family of Nations respecting the very creation
» See above, § 91.
NEGOTIATION 643
of rules of International Law by international conven-
tions. Since the Vienna Congress at the beginning of
the nineteenth century negotiations between the Powers
for the purpose of defining, creating, or abohshing rules
of International Law have been frequently conducted.^
§ 480. International negotiations are conducted by Negotia-
the agents which represent the negotiating States, whom ^
The heads of these States may conduct the negotiations ^""^ed
in person, either by letters or by a personal interview.
Serious negotiations have, in the past, been conducted
by heads of States, and, although this is comparatively
seldom done, there is no reason to believe that personal
negotiations between heads of States will not occur in
future.^ Heads of States may also personally negotiate
with diplomatic, or other, agents commissioned for that
purpose by other States. Ambassadors, as diplomatic
agents of the first class, must, according to International
Law, have even the right to approach in person the head
of the State to which they are accredited for the purpose
of negotiation.^ As a rule, however, negotiation between
States concerning more important matters is conducted
by their Secretaries for Foreign Affairs, with the help,
either of their diplomatic envoys, or of agents without
diplomatic character, and so-called commissaries.*
§ 481. The Law of Nations does not prescribe any Form of
particular form in which international negotiations ^on."*'*
must be conducted. Such negotiations may, therefore,
take place viva voce, or through the exchange of written
representations and arguments, or both. The more
important negotiations are regularly conducted through
the diplomatic exchange of written communications,
as only in this way can misunderstandings be avoided,
which easily arise during viva voce negotiations. Of the
' See below, §§ 555-568c. ' Negotiations between armed
* See below, § 495. f<"'°?' °*, belligerents are regularly
' oonduoted by soldiers. See below,
' See above, § 365. vol. ii. §§ 220-240.
644 INTERNATIONAL TRANSACTIONS IN GENERAL
greatest importance are the negotiations which take
place through congresses and conferences.^
During viva voce negotiations it happens sometimes
that a diplomatic envoy negotiating with the Secretary
for Foreign Affairs reads out a letter received from his
home State. In such case it is usual to leave a copy
of the letter at the Foreign Office. If a copy is refused,
the Secretary for Foreign Affairs can, on his part, refuse
to hear the letter read. Thus in 1825 Canning refused
to allow a Russian coromunication to be read to him by
the Russian ambassador in London with regard to
the independence of the former Spanish colonies in
South America, because this ambassador was not
authorised to leave a copy of the communication at
the British Foreign Office.^
End and § 482. Negotiations may, and often do, come to an
mgotia* ^^^ without any effect whatever, on account of the
tion. parties faiUng to agree. On the other hand, if negotia-
tions lead to an understanding, the effect may be two-
fold. It may consist, either in a satisfactory exchange
of views and intentions, and the parties are then in no
way, at any rate not legally, bound to abide by such
views and intentions, or to act on them in the future ;
or in an agreement on a treaty, and then the parties
are legally bound by the stipulations of such treaty.
Treaties are of such importance that it is necessary
to discuss them in a special chapter.^
II
CONGRESSES AND CONFERENCES
Phillimore, ii. §§ 39-40— Twias, ii. § 8— Taylor, §§ 34-36— Hershey, Nos. 292-
294— Bluntsohli, § 12— Heffter, § 242— GeflFoken in HoUzendorff, iii.
pp. 679-684— UUmann, §§ 71-72— Bonfila, Nos. 796-814— Despagnet,
Nos. 478-482— Pradier-Fod^r6, vi. Nos. 2593-2699— Rivier, ii. § 46—
' See below, § 483. during negotiation, see above, § 359.
' As regards the language used ' See below, §§ 491-554.
CONGEESSES AKD CONFERENCES 645
Nys, ii. pp. 486-496— Calvo, iii. §§ 1674-1681— Fiore, ii. Nos. 1216-1224,
and Codi, Nos. 1211-1250— Martens, i. § 52— Charles de Martens,
GuKfe diplomatique, i. § 58 — Pradier-Fod^ri, C<mrs de Droit diplo-
matique (1881), ii. pp. 372-425 — Zaleski, Die volken-echtliche Be-
deutung der Congresse (1874) — Nippold, Die Foribildung det Verfahrena
in voUxrrechtlichen Streitigkeiten (1907), pp. 480-526 — Satow, Diplomatic
Practice, ii. §§ 439-497— Myers in A. J., viii. (1914), pp. 81-108.
§ 483. International congresses and conferences are Conoep-
formal meetings of the representatives of several States, con-°
for the purpose of discussing matters of international ^J^
interest, and coming to an agreement concerning these ferenoes.
matters. The term ' congress ' as well as the term
* conference ' may be used for the meetings of the repre-
sentatives of only two States ; but as a rule congresses or
conferences denote such bodies only as are composed of
the representatives of a greater number of States.
Several writers ^ allege that there are characteristic
difEerences between a congress and a conference. But
all such alleged difEerences vanish in face of the fact
that the Powers, when summoning a meeting of repre-
sentatives, use the terms ' congress ' and ' conference '
indiscriminately. It is not even correct to say that the
more important meetings are named congresses, in
contradistinction to conferences, for the Hague Peace
Conferences of 1899 and 1907 were, in spite of their
great importance, denominated conferences.
Much more important than the mere terminological
dtfEerence between ' congress ' and ' conference ' is the
difEerence of the representatives who attend the meeting.
For it may be that the heads of the States meet at a
congress or conference, or that the representatives
consist of diplomatic envoys and Secretaries for Foreign
Afiairs of the Powers. But, although congresses and
conferences of heads of States have been held in the
past, and might at any moment be held again in the
' See, for instance, Martens, i. § 52 ; Fiore, ii. §§ 1216-1224, and Code,
No. 1236.
646 INTERNATIONAL TRANSACTIONS IN GENERAL
future, there can be no doubt that the most important
matters are treated by congresses and conferences con-
sisting of diplomatic representatives of the Powers.
Parties to § 484. Congrcsses and conferences not being organised
^^gg by customary or conventional International Law, no
and Con- rules cxist with regard to the parties to a congress or
conference. Everything depends upon the purpose for
which a congress or a conference meets, and upon the
Power which invites other Powers to the meeting. If
it is intended to settle certain differences, it is reasonable
that all the States concerned should be represented, for
a Power which is not represented need not consent to
the resolutions of the congress. If the creation of new
rules of International Law is intended, at least all full
sovereign members of the Family of Nations ought to
be represented. To the first Peace Conference at the
Hague, nevertheless, only the majority of States were
invited to send representatives, the South American
repubhcs not being invited at all. But to the second
Peace Conference of 1907, forty-seven States were
invited, although only forty-four sent representatives.
Costa Rica, Honduras, and Abyssinia, though invited,
did not send any delegates.
It is frequently maiutained that only full sovereign
States can be parties to congresses and conferences.
This is certainly not correct, since here, too, everything
depends upon the merits of the special case. As a rule,
full sovereign States only are parties, but there are
exceptions. Thus the British Dominions — Canada,
Australia, South Africa, New 25ealand — and India were
separately represented within the British Empire dele-
gation at the Peace Conference at Paris in 1919. Again
Bulgaria, at that time a vassal under Turkish suzerainty,
was a party to the first and second Hague Peace Con-
ferences, although without a vote. There is no reason
to deny the rule that haK and part sovereign States can
CONGRESSES AND CONFERENCES 647
be parties to congresses and conferences in so far as
they are able to negotiate internationally.^ Such States
are, in fact, frequently asked to send representatives to
^uch congresses and conferences as meet for non-political
matters. Moreover, there is no objection to admitting
a delegate of the Pope to a congress or a conference,
although the Holy See is not a State.
But no State can be a party which has not been
invited, or admitted at its own request. If a Power
thinks it fitting that a congress or conference should
meet, it invites such other Powers as it pleases, though
the invited Powers may accept upon condition that
certain other Powers should, or should not, be invited
or admitted. Those Powers which have accepted the
invitation become parties, if they send representatives.
Each party may send several representatives, but they
have only one vote, given by the senior representative
for himself and his subordinates.
§ 485. After the place and time of meeting have Procedure
been arranged — such place may be neutralised for thCg^g""
purpose of securing the independence of the dehbera- ?°<i Co°-
tions and discussions — the representatives meet, and
constitute themselAi'es, by exchanging their commissions,
and electing a president and other officers. It is usual,
but not obhgatory,^ for the Secretary for Foreign Affairs
of the State within which the congress meets to be
elected president. If the difficulty of the questions
on the programme mates it advisable, special committees
axe appointed for the purpose of preparing the matter
for discussion by the body of the congress. In such
discussion all representatives can take part. After the
discussion follows the voting. The motion must be
carried unanimously to consummate the task of the
' See above, § 478. was elected president. At the
Peace Conference at Paris in 1919
* Thus at both Hague Peace Con- the first French plenipotentiary was
ferenoes the fiist Kussiaoi delegate elected president.
648 INTERNATIONAL TRANSACTIONS IN GENERAL
congress, for the vote of the majority does not in any
way bind the dissenting parties. But it is possible for
the majority to consider the motion blading for its
members. A protocol is to be kept of all the discus-
sions, and the voting. If the discussions and voting
lead to a final result upon which the parties agree, all
the points agreed upon are generally drawn up in an
Act, which is signed by the representatives, and called
the Final Act, or the General Act, of the congress or
conference. A party can make a declaration or a reserva-
tion in signing the Act, for the pm^ose of excluding a
certain interpretation of the Act in the future. And
the Act may expressly stipulate freedom for States
which were not parties to accede to it in future.
Ill
TRANSACTIONS BESIDES NEGOTIATION
Blimtsohli, § 482— Hartmann, § 91— Gareis, § 77— Liszt, § 20.
Different § 486. International transaction is the term for every
TraiJac- ^^^ '^^ the part of a State in its intercourse with other
*'°"- States. Besides negotiation, which has been discussed
above in §§ 477-482, there are eleven other kinds of
international transactions which are of legal import-
ance — namely, declaration, notification, protest, re-
nunciation, recognition, intervention, retorsion, reprisals,
pacific blockade, war, and subjugation. Recognition
has already been discussed above in §§ 71-75, inter-
vention in §§ 134-138, and subjugation in §§ 236-241.
Retorsion, reprisals, pacific blockade, and war will be
treated in the second volume of this work. There are,
therefore, only four kinds of transaction to be dis-
cussed here — ^namely, declaration, notification, protest,
and renunciation.
TRANSACTIONS BESIDES NEGOTIATION 649
§ 487. The term * declaration ' is used in three difierent Deoiara-
meanings. It is, in the first place, sometimes used as the *'°"*
title of a body of stipulations of a treaty, according to
which the parties undertake to pursue in future a certain
Hne of conduct. The Declaration of Paris, 1856, and
the Declaration of St. Petersburg, 1868, are instances of
this. Declarations of this kind difier in no respect from
treaties.^ Secondly, when States communicate to other
States, or urhi et orbi, an explanation and justification
of a line of conduct pursued by them in the past, or an
explanation of views and intentions concerning certain
matters, this is called a declaration. Declarations of this
kind may be very important, but they hardly comprise
transactions out of which rights and duties of other
States follow. But there is a third land of declaration
from which rights and duties do follow for other States,
and it is this kind which is to be regarded as an inter-
national transaction within the meaning of this part of
this chapter. The different declarations belonging to
this group are by no means of a uniform character ;
among them are declarations of war, declarations on
the part of belKgerents concerning the goods they will
condemn as contraband, declarations at the outbreak
of war on the part of third States that they will remain
neutral, and others.
§ 488. Notification is the technical term for the com- NoUfloa-
munication to other States of certain facts and events
of legal importance. But a distinction must be drawn
between obligatory and merely usual notification.
Notification has been stipulated in several cases to
be obHgatory. Thus, according to Article 34 of the
General Act of the Berhn Congo Conierence of 1885,
which has now been repealed by a convention signed
at St. Germain on September 10, 1919, notification of
' See below, § 508, where is men- Foreign Office to give to the term
tioned the attempt of the British ' declaration ' a specific meaning.
650 INTERNATIONAL TRANSACTIONS IN GENERAL
new occupations and the like on the African coast was
obHgatory. Thus, further, according to Article 84 of
the Hague Convention for the peaceful adjustment of
international differences, in case a number of States are
parties to a treaty, and two of them, who are at variance
concerning its interpretation, agree to have the differ-
ence settled by arbitration, they have to notify this
agreement to all the other parties. Again, according
to Article 2 of the Hague Convention concerning the
Commencements of HostiHties, 1907, the outbreak of
war must be notified to the neutral Powers ; and the
declaration of a blockade was also to be notified,^
according to Article 11 of the unratified Declaration
of London, 1909.
Apart from cases in which notification is stipulated
as obligatory, it is, in principle, not obhgatory, although,
in fact, it frequently takes place, because States cannot
be considered subject to certain duties without know-
ledge of the facts and events which give rise to them.
Thus it is usual to notify to other States changes in the
headship, and in the form of government of a State,
the estabhshment of a Federal State, an annexation
after conquest, the appointment of a new Secretary for
Foreign Afiairs, and the like.
Protest. § 489. Protest is a formal communication from one
State to another that it objects to an act performed,
or contemplated, by the latter. A protest serves the
purpose of preservation of rights, or of making it known
that the protesting State does not acquiesce in, and does
not recognise, certain acts. A State can lodge a protest
with another State against acts which have been notified
to the protesting State, or which have otherwise become
known. On the other hand, if a State acquires know-
ledge of an act which it considers internationally illegal,
* See also the unratified Declaration of London, Articles 11 (2), 16, 23,
25, and 26.
TRANSACTIONS BESIDES NEGOTIATION 651
and against its rights, and nevertheless does not protest,
this attitude impUes a renunciation of such rights, pro-
vided that a protest would have been necessary to pre-
serve a claim. It may further happen that a State at
first protests, but afterwards either expressly ^ or tacitly
acquiesces in the act. And it must be emphasised that,
under certain circumstances and conditions, a simple
protest on the part of a State, without further action, is
not in itself sufficient to preserve the rights in behalf of
which the protest was made.^
§ 490. Renunciation is the deUberate abandonment Renunoia-
of rights. It can be given expressis verbis or tacitly.
If, for instance, a State by occupation takes possession
of an island which has previously been occupied by
another State,^ the latter tacitly renounces its rights
by not protesting as soon as it receives knowledge of
the fact. Remmciation plays a prominent part in the
amicable settlement of differences between States, either
one or both parties frequently renouncing their claims
for the purpose of coming to an agreement. But it
must be specially observed that mere silence on the
part of a State does not imply renunciation ; this occurs
only when a State remains silent, although a protest is
necessary to preserve a claim.
' Thus by the Declaration con- Madagascar after its annexation to
ceming Siam, Madagascar, and the France.
New Hebrides, wliioh was embodied * See below, § 539, concerning the
in the Anglo-Frenoh Agreement of withdrawal of Russia from Article
April 8, 1904, Great Britain with- 59 of the Treaty of Berlin, 1878,
drew the protest which she had stipulating the freedom of the port
raised against the introduction of of Batoum.
the customs tariff established at ' See above, § 247.
CHAPTER II
TREATIES
I
CHARACTER AND FUNCTION OF TREATIES
Vattel, ii. §§ 152, 153, 157, 163— Hall, § 107— PhilUmore, ii. § 44— Twiss, i.
§§ 224-233— Taylor, §§ 341 -342— Hershey , Nos. 295-296- Bluntsohli,
§ 402— Heffter, § 81— Despagnet, Nos. 435-436— Pradier-FodfirA, ii.
Nos. 888-919— Rivier, ii. pp. 33-40— Nys, ii. pp. 497-498, and 522-530
— Calvo, iii. §§ 1567-1584— Fiore, ii. Nos. 976-982— Martens, i. § 103—
Bergbohm, Staatsvertrdge und Oeseize ah QudUn dei Volkerrechts (1877)
— Jellinek, Die rechtliche Natur der Staatenvertrdge (1880) — Laghi,
Teoria dei Trattati intemazionali (1882) — Buonamioi, Dei Trattati
intemazionali (1888) — Nippold, Der volkerrechtliche Verirag (1894)—
Triepel, Volherrecht und Landearecht (1899), pp. 27-90 — Grosoh, Der
Zwwng im Volkerrecht (1912), pp. 38-56, 138-143- Crandall, Treatiet;
their Making and Enforcement, 2nd ed. (1916) — Lammasoli, Dot
Volkerrecht nach dem Kriege (1917), pp. 92-129 — Satow, Diplomatic
Practice, ii. §§ 498-534.
Conoep- § 491. International treaties are conventions, or con-
Treatfes. ^^acts, between two or more States concerning various
matters of interest. Even before a Law of Nations, in
the modern sense of the term, was in existence, treaties
used to be concluded between States. And although
in those times treaties were neither based on, nor were
themselves a cause of, an International Law, they were
nevertheless considered sacred, and binding, on account
of religious and moral sentiment. However, since the
manifold intercourse of modern times did not then exist
between the different States, treaties did not discharge
such all-important functions in the life of humanity as
662
CHARACTEE AND FUNCTION OP TREATIES 653
they do now. It has been estimated that the number-
of treaties in force between the several States at the
outbreak of the World War exceeded eight thousand,
and although a number were abrogated by the war,
the number is again increasing daily.
A treaty, being a contract, must not be confounded
with various documents having relation to treaties
without themselves being treaties — namely, a memoire,
a proposal, a note verbal, or a protocol. A memoire or
memorandum is a diplomatic note containing a summary
exposition of the principal facts of an afiair. A pro-
posal is a document comprising an offer submitted by
one State, to another. A note verhal is an unsigned
document containing a summary of conversations or of
events, and the hke. A protocol is an official report of
proceedings or of facts, signed by the interested parties.
§ 492. The important functions of treaties are manifest Different
if attention is given to the variety which exist nowadays. Treaties.
and are day by day concluded for innumerable purposes.
In regard to State property, treaties of cession, boundary
treaties, and many others are concluded. AlKances,
treaties of protection, of guarantee, of neutrahty, and
of peace are concluded for pohtical purposes. Various
purposes are served by consular treaties, commercial ^
treaties, treaties in regard to the post, telegraphs, and
railways, treaties relating to cop)rright and the hke,
to jurisdiction and to extradition, monetary treaties,
treaties in regard to measures and weights, to rates,
taxes, and customs duties, sanitation treaties with re-
spect to epidemics, treaties in the interest of industrial
labourers, and treaties with regard to agriculture and
industry. Again, various purposes are served by
treaties concerning warfare, mediation, arbitration, and
soon.
I do not intend to discuss the question of classifica-
1 See below, §§ 578-580.
654
TREATIES
tion of the different kinds of treaties, for hitherto all
attempts ^ at such classification have failed. But there
is one distinction to be made, which is of the greatest
importance, and according to which the whole body of
treaties is to be divided into two classes. In one class
are treaties concluded for the purpose of confirming,
defining, or abolishing existing customary rules, and of
estabUshing new rules for the Law of Nations. Treaties
of this kind ought to be termed law-making treaties.
Into the other class fall treaties concluded for any other
purpose. Law-making treaties as a source of rules of
International Law have been discussed above (§ 18) ;
the most important of these treaties wiU be considered
below (§§ 556-568c).
Binding § 493. The questiou why international treaties have
Treaties, binding force, always was, and still is, very much dis-
puted. That all those pubhcists who deny the legal
character of the Law of Nations deny hkewise a legaDy
binding force in international treaties is obvious. But
even among those who acknowledge the legal character
of International Law, unanimity by no means exists
concerning the binding force of treaties. The question
is all the more important as everybody knows that
treaties are sometimes broken, rightly according to the
opinion of the one party, and wrongly according to the
opinion of the other. Many pubhcists find the binding
force of treaties in the Law of Nature ; others in religious
and moral principles ; others ^ again in the self-restraint
exercised by a State in becoming a party to a treaty.
Some writers ^ assert that it is the will of the contract-
ing parties which gives binding force to their treaties ;
» Sinoe the time of Grotius, the § 268 (following Vattel, ii. § 169) ;
seienoe of the Law of Nations has Bivier, ii. pp. 106-118; Westlake, i.
not ceased attempting a satisfactory p. 294, and many others,
classification of the different kinds - So Hall, § 107 ; Jellinek, Staaten-
of treaties. See Heffter, §§ 89-91 ; vertrage, p. 31 ; Nippold, § 11.
Bluntsohli, §§ 442-445 ; Martens, i. ' So Triepel, Volkerrecht und
§ 113; UUmann, § 82; Wheaton, Landetrecht {1899), p. &2.
CHARACTER AND FUNCTION OP TREATIES 655
and others ^ teach that such binding force is to be found
im Rechtsbewusstsein der Menschheit — that is, in the idea
of right innate in man. I beheve that the question
can satisfactorily be dealt with only by dividing it into
several different questions, and by answering those
questions seriatim.
First, the question is to be answered why treaties
are legally binding. The categorical answer must be
that this is so because there exists a customary rule of
International Law that treaties are binding.
Then the question might be put as to the cause of
the existence of such customary rule. The answer must
be that such rule is the product of several joint causes.
Rehgious and moral reasons require such a rule, quite
as much as the interest of the States, for no law could
exist between nations, if such rule did not exist. All
causes which have been, and are still, working to create,
and maintain, an International Law are at the back-
ground of this question.
And, thirdly, the question might be asked, how it is
possible to speak of treaties having legally binding force
without a judicial authority to enforce their stipula-
tions. The answer must be that the binding force of
treaties, although it is a legal force, is not the same as
the binding force of contracts according to Municipal
Law, since International Law is a weaker law, and for
this reason less eniorceable, than Municipal Law. But
just as International Law does not lack legal character,
in consequence of the fact that there is no central
authority ^ above the States which could enforce it, so
international treaties are not deficient of a legally bind-
ing force, because there is no judicial authority for the
enforcement of their stipulations.
' So Bluntsohli, § 410. * See above, § 6.
656
TEBATIES
II
PARTIES TO TREATIES
Vattel, ii. §§ 154-156, 206-212— Hall, § 108— Westlake, i. p. 290— Phillimore,
ii. §§ 48-49— Taylor, §§ 361-365— Hershey, No. 297— Wheaton, §§ 265-
267— Moore, v. §§ 734-737— Bluntsohli, §§ 403-409— Heffter, §§ 84-85—
Ullmann, § 75— Bonfils, No. 818— Despagnet, No. 446— Pradier-Fod^rA,
ii. Nos. 1058-1068— Rivier, ii. pp. 45-48— Nys, ii. pp. 499-500— Calvo,
iii. §§ 1616-1618— Fiore, ii. Nos. 984-1000, and Code, No3. 748-754—
Martens, i. § 104 — Nippold, op. cit., pp. 104-111 — Crandall, op. cit.,
§§ 1-5— Sohoen in Z.V., v. (1911), pp. 400-431.
The § 494. The so-called right of making treaties is not
maw*ng ^ right belonging to a State in the technical meaning of
Power, tjie term, but a mere competence attaching to sove-
reignty. A State possesses, therefore, treating-making
power only so far as it is sovereign. Full sovereign
States may become parties to treaties of all kinds, being
regularly competent to make treaties on whatever
matters they please. Not-full sovereign States, how-
ever, can become parties only to such treaties as they
are competent to conclude. It is impossible to lay down
a hard and fast rule defining the competence of all-
not-full sovereign States. Everything depends upon
the special case. Thus, the constitutions of Federal
States comprise provisions with regard to the com-
petence, if any, of the member-States to conclude inter-
national treaties among themselves as well as with
foreign States.^ Thus, again, it depends upon the
^ According to Articles 7 and 9 of affairs regulated by State legislation ;
the Constitution of Switzerland the but these agreements require the oon-
Swiss member-States are competent sent of the Federation. On the other
to conclude non-politioal treaties hand, according to Article 1, § 10, of
among themselves, and, further, such the Constitution of the United States
treaties with foreign States as con- of America, the member-States are
cern matters of police, of local not competent to conclude treaties
traffic, and of State economics. either among themselves or with
According to Article 78 of the foreign States. On the treaty-mak-
German Constitution adopted since ing power of the United States, see
the World War, the German mem- Tucker, Limitation) on the Treaty-
ber-States are competent to conclude making Power under the Conatitution
agreements with foreign States as to of the United Statet (1916).
PARTIES TO TREATIES 657
special relation between the suzerain and the vassal
how far the latter possesses the competence to enter
into treaties with foreign States ; ordinarily a vassal
can conclude treaties concerning such matters as rail-
ways, extradition, commerce, and the like.
§ 495, The treaty-making power of States is, as a rule, Treaty-
exercised by their heads, either personally, or through power^
representatives appointed by these heads. The Holy^^g^^^
AlUance of Paris, 1815, was personally concluded by of states
the Emperors of Austria and Russia and the King of oovem-
Prussia. And when, on June 24, 1859, the Austrian "'®"**-
army was defeated at SoLferino, the Emperors of Austria
and France met on July 11, 1859, at Villafranca, and
agreed in person on preUminaries of peace. Yet, as a
rule, heads of States do not act in person, but authorise
representatives to act for them. Such representatives
receive a written commission, known as powers, or full
powers, which authorise them to negotiate in the name
of the respective heads of States, They also receive
oral or written, open or secret instructions. But, as a
rule, they do not conclude a treaty finally, for all treaties
concluded by such representatives are, in principle, not
valid before ratification,^ If they conclude a treaty by
exceeding their powers, or acting contrary to their in-
structions, the treaty is not a real treaty, and not bind-
ing upon the State they represent, A treaty of such
a kind is called a sponsio, or sponsiones. Sponsiones
may become a real treaty, and binding upon the State,
through the latter's approval. Nowadays, however, the
difference between real treaties and sponsiones is less
important than in former times, when the custom in
favour of the necessity of ratification for the validity of
treaties was not yet general. If nowadays representa-
tives exceed their powers, their States can simply refuse
ratification of the sponsio. Be that as it may, while,
1 See below, § 510.
VOL. I. 2t
658
TREATIES
as a rule, the treaty-making power of States is exer-
cised by their heads, the constitutional practice of
some States assigns it, so far as many matters are
concerned, to their Governments. In such a case it is
the Government, and not the head of the State, which
must ratify the treaty, in order to make it binding.
Minor § 496. For some non-political purposes of minor im-
aries portance, certam minor functionanes are recognised
Treaty"*^ as Competent to exercise the treaty-making power of
making their States, which is, so to say, delegated to them.
Such functionaries are i/pso facto, by their offices and
duties, competent to enter into certain agreements
without the requirement of ratification. Thus, for
instance, in time of war, mihtary and naval officers
in command ^ can enter into agreements concerning a
suspension of arms, the surrender of a fortress, the
exchange of prisoners, and the Hke. But it must be
emphasised that treaties of this kind are valid only
when these functionaries have not exceeded their powers.
Self- § 496a. Again, the treaty-making power belonging to
f^^"^ a full sovereign State may be for certain purposes, or to
T^t"^ a certain extent, delegated according to the constitu-
making tioual practice of that State by the central Government
to the self-governing portions of the territory of that
State. Thus, the British self-governing Dominions
negotiate and conclude tariff arrangements with foreign
States, and the Imperial Government is not in the habit
of interfering, unless general imperial interests, or
treaty obUgations undertaken by Great Britain towards
foreign States, are involved.^
CoDBtitu- § 497, Although the heads of States are regularly,
Bestrio- according to the Law of Nations, the organs that exercise
tions. ^}^g treaty-making power of the States, constitutional
restrictions imposed upon the heads concerning the
' See Grotius, iii. o. 22. governing Dominions in Intema-
* On the general position of self- tional Law, see above, |§ 94a, 946.
PARTIES TO TREATIES 659
exercise of this power are nevertheless of importance
for the Law of Nations. Such treaties concluded by
heads of States, or representatives authorised by these
heads, as violate constitutional restrictions are not real
treaties, and do not bind the State concerned, because
the representatives have exceeded their powers in con-
cluding the treaties.^ Such constitutional restrictions,
although they are not of great importance in Great
Britain, 2 play a prominent part in the constitutions
of most countries.^ Thus, according to Article 8 of the
French Constitution, the President exercises the treaty-
making power ; but peace treaties and such other
treaties as concern commerce, finance, and some other
matters, are not vaUd without the co-operation of the
French Parhament. Thus, further, according to Article
45 of the German Constitution, the President exercises
the treaty-making power in the name of the Federation ;
but such treaties as refer to subjects of Federal legisla-
tion require the consent of the Reichstag. Again,
according to Article 2, § 2, of the Constitution of
the United States, the President can only ratify treaties
with the consent of the Senate.
§ 498. A treaty being a convention, mutual consent Mutual
of the parties is necessary. Mere proposals made by ^h"con-°*
one party, and not accepted by the other, are, therefore, ^acting
not binding upon the proposer. Without force are also
pollicitations, which contain mere promises without
acceptance by the party to whom they were made.
Not binding are, lastly, so-called punctaiiones, mere
negotiations on the items of a future treaty, without
the parties entering into an obligation to conclude that
treaty. But such punctationes must not be confounded,
' The whole matter is discussed pp. 297-300.
with great lucidity by Nippold, ' See Orandall, op. c»<., §§ 33-154,
op. cti., pp. 127-164; see also Schoen, where the constitutional rules con-
loc. cit. . cerning the making of treaties which
* See Anson, The Law cmd Cuitom prevail in the United States, and in
of the Constitviion, ii. (2nd ed. ), most other countries, are discussed.
660
TREATIES
either v?ith a preliminary treaty, or with a so-called
'pactum de contrakendo. A preliminary treaty requires
the mutual consent of the parties with regard to certain
important points, whereas other points have to be
settled by the definitive treaty to be concluded later.
Such preliminary treaty is a real treaty, and therefore
binding upon the parties. A factum de contrakendo
requires hkewise the mutual consent of the parties. It
is an agreement upon certain points to be incorporated
in a future treaty, and is binding upon the parties. The
difierence between fwmtationes and a factum de con-
trahendo is, that the latter imposes an obhgation on
the parties to settle the points in question by a treaty,
whereas the former does not.
Freedom § 499. As a treaty will lack binding force without
of Con °° ^^^ consent, absolute freedom of action on the part of
senting ^i^e Contracting parties is required. It must, however,
tatives. be Understood that circumstances of urgent distress,
such as either defeat in war, or the menace of a strong
State to a weak State, are, according to the rules of
International Law, not regarded as excluding the freedom
of action of a party consenting to the terms of a treaty.
The phrase " freedom of action ' apphes only to the
tefresentatives of the contracting States. It is their
freedom of action in consenting to a treaty which must
not have been interfered with, and which must not have
been excluded by other causes. A treaty concluded
through intimidation exercised against the representa-
tives of either party, or concluded by intoxicated or
insane representatives, is not binding upon the party so
represented. But a State which was forced by circum-
stances to conclude a treaty containing humihating
terms has no right afterwards to shake off the obhga-
tions of such a treaty on the ground that its freedom of
action was interfered with at the time.^ This must be
' See examples in Moore, v. § 742.
OBJECTS OP TREATIES 661
emphasised, because, in practice, such cases of repudia-
tion have frequently occurred. A State may, of course,
hold itseK justified by pohtical necessity in shaking ofi
such obligations, but this does not alter the fact that
such action is a breach of law.
§ 500. Although a treaty was concluded with the Delusion
real consent of the parties, it is nevertheless nob bind- fn oon"°"^
ing if the consent was given in error, or under a delusion ^acting
produced by a fraud of the other contracting party.
If, for instance, a boundary treaty were based upon an
incorrect map, or a map fraudulently altered by one of
the parties, such treaty would by no means be binding.
Although there is freedom of action in such cases,
consent has been given under circumstances which
prevent the treaty from being binding.
Ill
OBJECTS OF TREATIES
Vattel, ii. §§ 160-162, 166— Hall, § 108— Phillimore, ii. § 51— Walker, § 30—
Bluntsohll, §§ 410-416— Heflfter, § 83— UUmann, § 79— Bonfils, No. 819—
Despagnet, No. 445— Pradier-Fod6r6, ii. Nos. 1080-1083— M6rignhac,
ii. p. 640— Rivier, ii. pp. 67-63— Nys, ii. pp. 503-504— Fiore, ii. Nos.
1001-1004, a,nA Code, Nos. 760-763— Martens, i. § 110— JelUnek, Die
rechtliche Natw der Staatenvertrdge (1880), pp. 59-60 — Nippold, op. cit.,
pp. 181-190.
§ 501. The object of treaties is always an obhgation, objects in
whether mutual between all the parties, or unilateral Ireattes!*
on the part of one only. Speaking generally, the object
of treaties can be an obhgation concerning any matter
of interest for States. Since there exists no other law
than International Law for the intercourse of States
with each other, every agreement between them regard-
ing any obhgation whatever is a treaty. However, the
Law of Nations prohibits some obhgations from becoming
objects of treaties, so that such treaties as comprise
662
TREATIES
obligations of this kind are, from the very beginning,
null and void.^
Obiiga- § 502. Obhgations to be performed by a State other
Contract- than a contracting party cannot be the object of a
only oan^' treaty. A treaty stipulating such an obUgation would
be Object, be null and void. But this must not be confounded with
an obUgation undertaken by one of the contracting
States to exercise an influence upon another State to
perform certain acts. The object of a treaty with such
a stipulation is an obMgation of one of the contracting
States, and the treaty is therefore vaUd and binding.
An obii- § 503. An obligation inconsistent with obhgations
oonristent Under treaties previously concluded by one State with
with other another cannot be the object of a treaty with a third
tionsoan- State. Thus, in 1878, when, after the war, Russia
Object.*" and Turkey concluded the prehminary Treaty of Peace
of San Stefano, which was inconsistent with the Treaty
of Paris of 1856 and the Convention of London of 1871,
England protested,^ and the Powers met at the Congress
of Berhn to arrange matters by mutual consent.
Object § 504. An obhgation to perform a physical impossi-
Ph^sio-* bihty ^ cannot be the object of a treaty. If perchance
ally a State entered into a convention stipulating an obh-
gation of that kind, no right to claim damages for non-
fulfilment of the obligation would arise for the other
party, such treaty being legally null and void.
Immoral § 505. It is a customarily recognised rule of the Law
tionf* of Nations that immoral obhgations cannot be the
object of an international treaty. Thus, an aUiance
for the purpose of attacking a third State without pro-
vocation is, from the beginning, not binding. It cannot
be denied that in the past many treaties stipulating
'The voidanoe ab origine of these other ; see below, §§ 541 -544.
treaties must not be confounded . g^^ Martens, N.R.O., 2nd Ser.
with voidanoe of such treaties as are •■• .og^
valid in their inception, but become ' "' '
afterwards void^ on some ground or ° See below, § 542,
FORM AND PARTS OF TREATIES 663
immoral obligations have been concluded and executed,
but this does not alter the fact that such treaties were
legally not binding upon the contracting parties. It
must, however, be taken into consideration that the
question as to what is immoral is often controversial.
An obhgation which is considered immoral by other
States may not necessarily appear immoral to the con-
tracting parties, and there is no court that can decide
the controversy,
§ 506. It is a unanimously recognised customary niegai
rule of International Law that obUgations which are at yonf*'
variance with universally recognised principles of Inter-
national Law cannot be the object of a treaty. If, for
instance, a State entered into a convention with another
State not to interfere in case the latter should appro-
priate a certain part of the open sea, or should command
its vessels to commit piratical acts on the open sea,
such treaty woidd be null and void, because it is a prin-
ciple of International Law that no part of the open
sea can be appropriated, and that it is the duty of every
State to interdict to its vessels the commission of piracy
on the high seas.
IV
FORM AND PARTS OP TREATIES
GrotiuB, ii. o. 15, § 5— Vattel, ii. § 153— Hall, § 109— Westlake, i. pp. 290-
291— Wheaton, § 253— Moore, v. § 740— Herehey, No. 298— Bluntsohli ,
§§ 417-427— Hartraann, §§ 46-47— Heffter, §§ 87-91— UUraann, § 80—
Bonfils, Nos. 821-823— Pradier-Fod6r6, ii. Nos. 1084-1099— M6rignhao,
ii. p. 645— Rivier, ii. pp. 64-68— Nys, ii. pp. 504-507— Flore, ii. Nos.
1004-1006, and Code, Nos. 764-768— Martens, i. § 112— Jellinek, Die
rechtliche Naiw der Staatenvertrdge (1880), p. 56 — Nippold, op. cit.,
pp. 178-181— Crandall, op. cit., § 6.
§ 507. The Law of Nations includes no rule which No Neoes-
prescribes a necessary form of treaties. A treaty is, ^^'^ °"^
therefore, concluded as soon as the mutual consent of Treaties.
664 TREATIES
the parties becomes clearly apparent. Such consent
must always be given expressly, or by unmistakable
conduct, for a treaty cannot be concluded by mere tacit
acquiescence ^ or mere passivity. But it matters not
whether an agreement is made orally, or in writing, or
by such conduct as impUes mutual consent, as, for in-
stance, when an agreement is made by sjrmbols. Thus,
in time of war, the exhibition of a white flag symbohses
the proposal of an agreement as to a brief truce, for
the purpose of certain negotiations, and the acceptance
of the proposal on the part of the other side by the
exhibition of a similar symbol estabhshes a convention
as binding as any written treaty. Thus, too, history
tells of an oral treaty of alhance, secured by an oath,
concluded in 1697 at Pillau between Peter the Great
of Russia and Frederick iii.. Elector of Brandenburg.^
Again, treaties are sometimes concluded through the
exchange of personal letters between the heads of two
States, or through the exchange of diplomatic notes ;
for instance, the important so-called Rush-Bagot Treaty
between the United States of America and Great Britain
of April 28/29, 1817, concerning naval forces on the
Great Lakes, was concluded by an exchange of diplo-
matic notes between Charles Bagot, the British minister
at Washington, and Richard Rush, the acting American
Secretary of State. However, as a matter of reason,
treaties usually take the form of a written ^ document,
signed by duly authorised representatives of the con-
tracting parties.
§ 508. International compacts which take the form of
' Taoit acquiescence must not be necessary for a treaty to be valid is,
confounded with what in English as far as I know, Bulmerincq (§ 56).
law is sometimes called ' taoit con- But although all important treaties
sent,' i.e. a contract which is not are naturally concluded in writing,
made in writing or orally, but is the example of the agreements con-
inferred from conduct. eluded between armed forces in time
^ See Martens, i. § 112. of war, either orally, or through
' The only writer who nowadays symbols, proves that the written
insists that a written agreement is form is not absolutely necessary.
FORM AND PARTS OF TREATIES 665
written contracts are sometimes termed not only agree- Aots,Con-
mmts or treaties, but acts, conventions, declarations, cedar"-'
protocols, and the like. But there is no essential ^ *^°°'' ^*°-
difEerence between them, and their binding force upon
the contracting parties is the same, whatever be their
name. The Geneva Convention, the Declaration of
Paris, and the Final Act of the Vienna Congress are
as binding as any agreement which goes under the name
of ' treaty ' or ' convention." The attempt ^ to dis-
tinguish fundamentally between a ' declaration ' and a
' convention ' by maintaining that, whereas a ' con-
vention ' creates rules of particular International Law
between the contracting States only, a ' declaration '
contains the recognition, on the part of the best quahfied
and most interested Powers, of rules of universal Inter-
national Law, does not stand the test of scientific criti-
cism. This becomes apparent from the mere fact
that the Declaration of Paris of 1856 had not been
agreed to by the United States of America, or by many
other States, at the time of its promulgation.
A ' declaration ' is nothing else than the title of a
law-making treaty, according to which the parties
engage themselves to pursue in future a certain Une
of conduct.^ But such law-making treaties are quite
as frequently styled ' conventions ' as ' declarations.'
The best example is the Hague ' Convention ' concern-
ing the laws and usages of war, which is based upon
the unratified ' declaration ' concerning the laws and
customs of war produced by the Brussels Conference
of 1874.
Again, the distinction made by the Government of
the United States between treaties, which can only be
* The distinction between ' agree- Foreign Office, see Parliamentary
ment' and 'contract' in English Papers, Misc., No. 5 (1909), Cd.
law — see Anson, Contract, 11th ed. 4555, Proceedings of the Inter-
(1911), pp. 2-3 — does not exist in national Naval Conference held in
International Law. London, 1908-1909, p. 57.
^ On the part of the British ' See above, § 487.
666
TREATIES
ratified by the President with the consent of the Senate,
and agreements, which do not require such consent,^
has nothing to do with International Law. It is a dis-
tinction according to the constitutional law — or the
constitutional practice — of the United States. And
the distinction made by the British Foreign Of&ce^
between treaties and one class of conventions on the
one hand, and another class of conventions, together
with most agreements and declarations, on the other
hand, according to which the former instruments are
said to be concluded in the name of the heads of the
States concerned, and the latter in the name of the
respective ' Governments,' has nothing to do with
International Law.
Parts of § 509. Since International Law lays down no rules
concerning the form of treaties, there exist no rules
concerning the arrangement of the parts of written
treaties. But the following order is usually observed.
A first part, the so-called 'preamble, comprises the names
of the heads of the contracting States, of their duly
authorised representatives, and the motives for the
conclusion of the treaty. A second part consists of the
primary stipulations in numbered articles. A third
part consists of miscellaneous stipulations concerning
the duration of the treaty, its ratification, the accession
of third Powers, and the like. The last part comprises
the signatures of the representatives. But this order
is by no means necessary. Sometimes, for instance,
the treaty itselE does not contain the very stipulations
upon which the contracting parties have agreed, such
stipulations being placed in an annex to the treaty. It
may also happen that a treaty contains secret stipula-
' See Moore, v. § 752, and, in conventions, see below, § 512.
particular, Crandall, op. cit., §^ 56-
61. As regards the assertion that ' See Cakes and Mowat, The Cheat
^only such compacts require ratifica- European Treaties of the Nineteenth
tion as bear the title treatiet or Century (1918), p. 1 n.
RATmCATION OF TREATIES 667
tions in an additional part, which are not made public
with the bulk of the stipulations.^
RATIFICATION OF TREATIES
Grotius, ii. e. 11, § 12— Pufendorf, iii. ^. 9, § 2— Vattel, ii. § 156— HaU,
§ 110— Westlake, i. pp. 290-292— Lawrence, § 132— Phillimore, ii. § 52—
Twiss, 1. § 214— Halleck, i. pp. 296-297— Taylor, §§ 364-367— Moore, v.
§§ 743-756— Walker, § 30— Wharton, ii. §§ 1 31-1 31a— Hershey, No. 298
— Wheaton, §§ 256-263— Bluntachli, §§ 420-421— Hefifter, § 87— Gessner
in HoUzendorff, iii. pp. 15-18— UUmann, § 78— Bonfils, Nos. 824-831—
Pradier-Fod6r6, ii. Nos. 11001119— M^rignhac, ii. pp. 652-666— Nys,
ii. pp. 507-515— Rivier, ii. § 50— Calvo, iii. §§ 1627-1636— Fiore, ii.
No. 994, and Code, No. 755— Martens, i. §§ 105-108— Wioquefort,
L' Anibassadeur et ses Fonciions (1680), ii. § xv. — JeUinek, Die rechUiche
Natur der Staatenvertrdge (1880), pp. 53-56 — Nippold, op. cil., pp. 123-
125 — Wegmann, Die RatifihUion von Staatsvertragen (1892) — Crandall,
op. cit., § 3 — Satow, Diplomatic Practice, ii. §§ 606-612.
§ 510. Ratification is the term for the final confiima- Concep-
tion given by the parties to an international treaty con- y^otion
eluded by their representatives. Although a treaty is of Ratifi-
concluded as soon as the mutual consent is manifest
from acts of the duly authorised representatives, its
binding force is, as a rule, suspended tiU ratification is
given. The function of ratification is, therefore, to
make the treaty binding ; and, if it is refused, the treaty
falls to the ground in consequence. As long as ratifica-
tion is not given, the treaty is, although concluded, not
perfect. Many writers ^ maintain that, as a treaty is
not binding without ratification, it is the latter which
really contains the mutual consent, and reaUy concludes
the treaty. Before ratification, they maintain, no
treaty has been concluded, but a mere mutual proposal
to conclude a treaty has been agreed to. But this
' The matter is treated with all JeUinek, op. cit. , p. 55 ; Nippold,
details by Pradier-Fod^r^, ii. §§ op. cit., p. 123; Wegmann, op. cit.,
1086-1099. p. 11.
* See, for instance, Ullmann, § 78 ;
670
TREATIES
quickly as possible. But it must be emphasised that
renunciation of ratification is vahd only if given by
representatives duly authorised to make such renun-
ciation. If the representatives have not received a
special authorisation to dispense with ratification, their
renunciation is not binding upon the States which they
represent.
It is asserted that ' apart from those compacts which
bear the title treaty or convention, ratification is only
required where it is provided f or ' ; ^ but this assertion
is too sweeping. Since all international compacts are
contracts, and therefore treaties in the wider sense of
the term, the title which a particular compact bears
cannot decide the question as to whether it does, or
does not, require ratification. The decision rather
depends upon the contents of the compact. Thus a
protocol, or an exchange of notes, which merely add
some minor point, or record agreement on the inter-
pretation of a clause in a treaty, do not require ratifi-
cation, unless this is specially stipulated. The same is
vaMd for agreements providing for a modus vivemdi and
the Uke, whatever title they may bear. Further, there
is no doubt that matters of minor importance are
frequently agreed upon by an exchange of notes, or in
so-caUed protocols, arrangements, declarations, and
the Hke, which are not considered to be subject to
ratification, because the agreements therein contained
are at once carried out. But apart from these obvious
exceptions, all compacts require ratification, whatever
title the document comprising them may bear.
Length of § 513. No rule of International Law prescribes the
lutmoa- length of time within which ratification must be given,
tion. or refused. If this is not specially stipulated by the
contracting parties in the treaty itself, a reasonable
length of time must be presumed to be mutually granted.
^ See Satow, op. cit., ii. §606, p. 276.
EATIFICATION OF TREATIES 671
Without doubt, a refusal to ratify must be presuraed
from the lapse of an unreasonable time without ratifica-
tion having been made. In most cases, however,
treaties which are in need of ratification now contain a
clause stipulating that they are subject to ratification,
and also prescribing the time within which ratification
should take place. .
§ 514. The question now requires attention whether Refusal of
ratification can be refused on just grounds only, or tion.
according to discretion. Formerly ^ it was maintained
that ratification could not be refused unless the repre-
sentatives had exceeded their powers, or violated
their secret instructions. But nowadays there is pro-
bably no pubUcist who maintains that a State is in
any case legally^ bound to accord ratification. Yet
many insist that a State is, except for just reasons, in
principle morally bound not to refuse ratification. I
cannot see, however, the value of such a moral, in con-
tradistinction to a legal, duty. The fact upon which
everybody agrees is that International Law does in no
case impose a duty of ratification upon a contracting
party. A State refusing ratification will always have
reasons for doing so which appear just to itself, although
they may be unjust in the eyes of others. In practice,
ratification is given, or withheld, at discretion. But
in the majority of cases, of course, ratification is not
refused. A State which often, and apparently wantonly,
refused to ratify treaties would lose all credit in inter-
national negotiations, and would soon feel the conse-
quences. On the other hand, it is impossible to lay
' See GrotiuB, ii. o. 11, § 12; ratification cannot regularly be re-
Bynkershoek, Quaeitiones juris fused. The hair-splitting soholasti-
pribUci, ii. 7 ; Wioquefort, L'Am- oiara of this writer is illustrated by a
iaiaadeur, ii. 15 ; Vattel, ii. § 156 ; comparison between his customary
G. F. von Martens, § 48. rule for the non-refusal of ratification,
' This must be maintained in spite as arbitrarily constructed by himself,
of Wegmann's assertion (op. cie., p. 32) and the opinion which he (p. 11)
that a customary rule of the Law of emphatically defends that a treaty is
Nations has to be recognised that concluded only by ratification.
672
TREATIES
down hard and fast rules respecting just and unjust
causes for refusing ratification. The interests at stake
are so various, and the circumstances which must influ-
ence a State are so imponderable, that it must be left
to the discretion of every State to decide the question
for itself. Numerous examples of important treaties
which have not foimd ratification can be given. It
sufiices to mention the Hay-Pauncefote Treaty between
the United States and Great Britain regarding the pro-
posed Nicaragua Canal, signed on February 5, 1900,
which was modified by the Senate of the United States
in consenting to its ratification, this being equivalent
to refusal of ratification. (See below, § 517.)
Form of § 515. No rule of International Law exists which
tion. prescribes a necessary form of ratification. Ratification
can, therefore, be given tacitly as well as expressly.
Tacit ratification takes place when a State begins the
execution of a treaty without expressly ratifying it.
Further, ratification may be given orally or in writing,
although I am not aware of any case in which ratifica-
tion was given orally. For it is usual for ratification
to take the form of a document duly signed by the
heads of the States concerned, and their Secretaries
for Foreign Affairs. It is usual to draft as many docu-
ments as there are parties to the convention, and to
exchange these documents between the parties. Some-
times the whole of the treaty is recited verbatim in the
ratifying documents, but sometimes only the title,
preamble, and date of the treaty, and the names of the
signatory representatives are cited. As ratification is
only the necessary confirmation of an already existing
treaty, the essential requirement in a ratifying docu-
ment is merely that it should refer clearly and unmis-
takably to the treaty to be ratified. The citation of
title, preamble, date, and names of the representatives
is, therefore, quite sufficient to satisfy that requirement,
RATIFICATION OP TREATIES 673
and I cannot agree with those writers who maintain
that the whole of the treaty ought to be recited verbatim.
§ 516. Ratification is effected by those organs which Ratifioa-
exercise the treaty-making power of the States. These whom ^
organs are regularly the heads of the States or their ®^®°*®'^-
Governments/ but they can, according to the Municipal
Law of some States, delegate the power of ratification
for some parts of their territory to other representatives.
Thus, the Viceroy of India is empowered to ratify
treaties with certain Asiatic monarchs in the name of
the King of Great Britain and Emperor of India.
In case the head of a State ratifies a treaty, although
the necessary constitutional requirements have not
been previously fulfilled (as, for instance, where a
treaty has not received the necessary approval from
the Parhament of the said State), the question arises
whether such ratification is vaHd, or null and void.
Many writers ^ maintain that it is nevertheless vahd.
But this opinion is not correct, because it is clearly
evident that, in such a case, the head of the State has
exceeded his powers, and that, therefore, the State con-
cerned cannot be held to be bound by the treaty." The
conflict between the United States and France in 1831,
frequently quoted in support of the opinion that such
ratification is vahd, is not in point. It is true that the
United States insisted on payment of the indemnity
stipulated by a treaty which had been ratified by the
Eang of France without having received the necessary
approval of the French Parhament. But the United
States did not maintain that the ratification was
vahd ; she insisted upon payment, because the French
Government had admitted that such indemnity was
due to her.*
' See above, § 495. * See above, § 497, and Nippold,
* See, for instance, Martens, i. p. 147.
§ 107, and Rivier, ii. p. 85. ' See Wharton, ii. § 131a, p. 20.
VOL. I. 2U
674
TKEATIES
Ratifioa- § 517. It follows from the nature of ratification, as a
not be necessary confirmation of a treaty already concluded,
a^dc^n- *^** ratification must be either given or refused, no
ditionaL conditional or partial ratification being possible. That
occasionally a State tries to modify a treaty in ratifying
cannot be denied ; but conditional ratification is no
ratification at all, but equivalent to refusal of ratifica-
tion. Nothing, of course, prevents the other contract-
ing party from entering into fresh negotiations in regard
to such modifications ; but it must be emphasised that
such negotiations are negotiations for a new treaty,^
the old treaty having become null and void through
its conditional ratification. On the other hand, no
obhgation exists for such party to enter into fresh nego-
tiations, it being a fact that conditional ratification is
identical with refusal of ratification, whereby the treaty
falls to the groimd. Thus, for instance, when the Senate
of the United States on December 20, 1900, in consenting^
to the ratification of the Hay-Paimcefote Treaty, added
amendments which modified it, Great Britain did not
accept the amendments, and considered the treaty to
have fallen to the ground.
Quite particular is the case of a treaty to which a
greater number of States are parties, and which is only
partially ratified by one of the contracting parties.
Thus France, in ratifying the General Act of the Brussels
Anti-Slavery CJonference of July 2, 1890,^ excepted
* This is the correct explanation I^esident, and not the Senate, who
of the practice on the part of States, possesses the power of granting or
which sometimes prevails, of ao- refusing ratification ; see Willoughby,
quiescing, after some hesitation, in The Con^itvtional Law of the United
alterations proposed by a party to a States (1910), i. p. 462, n. 14. The
treaty in ratifying it ; see examples President, however, £iccording to
in Pradier-FodirA, ii. No. 1104, and Article 2 of the Constitution, ean-
Calvo, iii. § 1630. not grant ratification without the
' It is of importance to emphasise consent of the Senate, and so the
that the Senate of the United States, proposal of an amendment to a
in proposing an amendment to a treaty on the part of the Senate
treaty before its ratification, does amounts to a proposal of a new treaty,
not, strictly speaking, ratify such ' Which is no longer in force, see
treaty conditionally, since it is the below, § 566.
RATIFICATION OF TREATIES 675
from ratification Articles 21 to 23 and 42 to 61, and the
Powers acquiesced in this partial ratification, so that
France was not bound by these twenty-three articles.^
But it must be emphasised that ratification is only
partial and conditional if one or more stipulations of
the treaty which have been signed without reservation
are exempted from ratification, or if an amending clause
is added to the treaty diiring the process of ratifica-
tion. It is therefore quite legitimate for a party who,
in signing a treaty, made reservations against certain
articles ^ to except those articles from ratification, and
it would be incorrect to speak in this case of partial
ratification.
Again, it is quite legitimate — and one ought not in
this case to speak of conditional ratification — ^for a
contracting party, who wants to secure a certain inter-
pretation for certain terms and clauses of a treaty, to
grant ratification upon the understanding only that
they should bear a particular interpretation. Thus
when, in 1911, opposition arose in Great Britain to the
ratification of the Declaration of London on account of
the fact that the meaning of certain terms was ambigu-
, ous, and that the wording of certain clauses did not
agree with the interpretation given to them by the
Report of the Drafting Committee, the British Govern-
ment declared that they would only ratify upon the
understanding that the interpretation contained in the
Report should be considered as binding, and that the
ambiguous terms concerned should bear that interpre-
tation.^ In such cases ratification does not introduce
an amendment or an alteration, but only fixes the
meaning of otherwise doubtful terms and clauses of a
treaty.
' See Martens, N.R.O., 2nd Ser. " In fact, the Declaration has not
xxii. p. 260. been ratified at all.
' See below, § 519.
676
TREATIES
EffMt of § 518. The effect of ratification by the parties is to
tion. maKe a treaty bmding. If one party executes an m-
stnunent of ratification, and the other does not, the
treaty falls to the ground. But the question arises
whether the effect of ratification is retroactive, so as to
make a treaty binding from the date when it was duly
signed by the representatives. No unanimity exists
among pubhcists as regards this question. As in all
important cases treaties themselves stipidate the date
from which they are to take effect, the question is
chiefly of theoretical interest. The fact that ratifica-
tion imparts the binding force to a treaty seems to
indicate that ratification has regularly no retroactive
effect. Different, however, is, of course, the case in
which the contrary is expressly stipulated in the treaty
itself, and, again, the case where a treaty contains stipu-
lations to be executed at once, without waiting for the
necessary ratification. Be this as it may, ratification
makes a treaty binding only if the original consent was
not given in error, or imder a delusion.^ If, however,
the ratifying State, having discovered such error or delu-
sion, ratifies the treaty nevertheless, such ratification
makes the treaty binding. And the same is vahd as
regards a ratification given to a treaty, although the
ratifying State knows that its representatives have
exceeded their powers by concluding the treaty.
VI
EFFECT OP TREATIES
Hall, § 114— Lawrence, § 134— HaUeck, i. pp. 299-302— Taylor, §| 370-373—
Wharton, iL § 137— Wheaton, § 266— Blnntsehli, §§ 415 416— Hartmann,
§ 49— Heffter, § 94— Bonfils, Nos. 845-850*— Despagnet, Nos. 447-448—
Pradier-Fod^*, ii. Nos. 1151-1155 — M^rignhac, ii. pp. 667-672 —
Bivier, ii. pp. 119-122— Calvo, iii. §§ 1643-1648— Flore, ii. Nos. 1008-
' See above, §-500.
EFFECT OF TREATIES 677
1009, and Code, Nos. 773-783— Martens, i. §§ 65 and 114— Nippold,
op. cit., pp. 151-160— Wright in A.J., x. (1916), pp. 706-736, and xi.
(1917), pp. 566-577— CrandaU, op. cit., §§ 155-159— Roxburgh, Inter-
nationaZ CcmverUumt and Third States (1917).
§ 519. By a treaty the contracting parties in tke first Effect of
place are concerned. The efEect of the treaty upon u^*Con-
them is that they are bound by its stipulations, and that ^^^^
they must execute it in all its parts. No distinction
should be made between more and less important parts
of a treaty as regards its execution. Whatever may be
the importance or the insignificance of a part of a treaty,
it must be executed in good faith, for the binding force
of a treaty covers all its parts and stipulations equally.
If, however, a party to a treaty concluded between
more than two parties signs it with a reservation as
regards certain articles, such party is not bound by
these articles, although it ratifies ^ the treaty.
§ 520. It must be specially observed that the binding Effect of
force of a treaty concerns the contracting States only, „p^*};he
and not their subjects. As International Law is a law ^P^j^*®
between States only and exclusively, treaties can have Parties.
effect upon, and can bind, States only and exclusively.
If treaties contain stipulations with regard to rights and
duties of the subjects of the contracting States,^ their
courts, officials, and the like, these States have to take
such steps as are necessary, according to their Municipal
Law, to make these stipulations binding upon their
subjects, courts, officials, and the like. It may be
that, according to the Municipal Laws of some countries,
the official pubUcation of a treaty concluded by the
Government is sufficient for this purpose, but in other
countries other steps are necessary, such as, for ex-
ample, special statutes to be passed by the respective
Parliaments.^
' See above, § 517. national and Municipal Law as
' See above, § 289. discussed above, §§ 20-25, is the
^ The distinction between Inter-. basis from which the question must
678
TREATIES
Effect of § 521, As treaties are binding upon the contracting
Changes rijji -iz-m oj. -.ip
in Gov- otates, changes m the Government, or even m the lorm
up" T"* °^ government, of one of the parties can, as a rule, have
Treaties, no influence whatever upon the binding force of treaties.
Thus, for instance, a treaty of alUance concluded by a
State with a constitutional government remains valid,
although the ministry may change. And no head of a
State can shirk the obligations of a treaty concluded
by his State under the government of his predecessor.
Even when a monarchy turns into a republic, or vice
versa, treaty obhgations regularly remain the same.
For all such changes and alterations, important as they
may be, do not alter the person of the State which con-
cluded the treaty. If, however, a treaty stipulation
essentially presupposes a certain form of government,
then a change from such form makes such stipulation
void, because its execution has become impossible.^
Effect of § 522. According to the principle pacta tertiis nee
nocent nee prosunt, a treaty concerns the contracting
States only ; neither rights nor duties, as a ride, arise
under a treaty for third States which are not parties to
the treaty. But sometimes treaties have indeed an
efiect upon third States.^ Such an effect is always pro-
duced when a treaty touches previous treaty rights of
third States. Thus, for instance, a commercial treaty
conceding more favourable conditions than hitherto
have been conceded by the parties thereto has an effect
upon all such third States as have previously concluded
commercial treaties containing the so-called most-
he decided whether international full sovereign State becomes half or
treaties have a direct effect upon the part sovereign, or vice versa, or if a
officials and subjects of the con- State merges entirely into another,
tracting parties. The matter is and the like. This is a case of
treated in detail by Wright in A. J., succession of States which has been
X. (1916), pp. 706-736. discussed above, §§ 82-84; see also
1 See below, § 542. Not to be below, § 548.
confounded with the effect of changes
in government is the effect of a ' The matter is exhaustively dis-
ohange in international status upon cussed by Roxburgh, International
treaties, as, for instance, if a hitherto Conventions and Third States (1917).
upon
Third
States.
EFFECT OP TREATIES 679
favoured-nation clause^ with one of the contracting
parties.
The question arises whether, in exceptional cases,
third States can acquire rights (and become subject to
the duties connected therewith) by giving their express
or impHcit consent to the stipulations of such treaties
as were specially concluded for the purpose of creating
such rights, not only for the contracting parties, but
also for third States. Thus, the Hay-Pauncefote
Treaty between Great Britain and the United States of
1901, and the Hay-Varilla Treaty between the United
States and Panama of 1903, stipulate that the Panama
Canal shall be open to vessels of commerce and of war
of all nations, although Great Britain, the United States,
and Panama only are parties.^ Thus, further. Article 5
of the Boundary Treaty of Buenos Ajrres of September
15, 1881, stipulates that the Straits of Magellan shall
be open to vessels of all nations, although Argentina
and Chih only are parties. Again, the Convention of
Paris, signed on March 30, 1856, and annexed to the
Peace Treaty of Paris of 1856, stipulated that Russia
should not fortify the Aland ^ Islands ; although this
stipulation was made in the interest of Sweden, only
Great Britain, France, and Russia were parties. I
beHeve that the question must be answered in the nega-
tive, and nothing prevents the contracting parties from
altering such a treaty without the consent of third
States, provided the latter have not in the meantime
customarily acquired such rights through the unanimous
imphcit consent of all concerned.
It has been asserted,* that if a treaty stipulates a right
for third States, and they make use of such a right, they
thereby acquire a legal right for themselves, so that the
' See below, § 580, but note the
' See above, § 205, p. 368, n. 3.
American interpretation of this
clause.
* Diena in Z.I., xxv. (1915),
' See above, § 184.
pp. 14-22.
680 TREATIES
treaty could not be abrogated without their consent.
It is argued that, having accepted a right which was
offered to them, they could not be deprived of it against
their will. There is no doubt that this hne of argu-
ment would be correct, if the contracting parties really
intended to offer such a right to third States. But it
may well be doubted whether such is always their
intention. It may be said that, if the contracting
parties had intended to do so, they would have embodied
a stipulation in the treaty, according to which the third
parties concerned could accede to it.^
It must be emphasised that a treaty between two
States can never invaHdate a stipulation in a treaty
between one of the contracting parties aM a third
State, unless the latter expressly consents. If, for
instance, two States have entered into an aUiance, and
one of them afterwards concludes a treaty with a third
State, according to which all conflicts without exception
shall be settled by arbitration, the previous treaty of
alhance remains vaUd, even in the case of war breaking
out between the third State and the other party to the
alhance.2 Therefore, when in 1911 Great Britain con-
templated entering into a treaty of general arbitration
with the United States of America, according to which
all differences should be decided by arbitration, she
notified Japan of her intention, on account of the existing
treaty of alhance, and Japan consented to substitute for
the old treaty a new treaty of alhance,^ Article 4 of which
stipulates that the aUiance shall never concern a war
with a third Power with whom one of the alhes may
have concluded a treaty of general arbitration.*
' The case of treaties intended to ' See below, § 569.
make an ' international settlement ' * Another example is the Bryan-
(see Roxburgh, op. cit., pp. 51-60) Chamorro Treaty of August 5, 1914,
would seem to be a case of unanimous between the United States of America
implicit consent. and Nicaragua, against which Costa
Rica, San Salvador, and Honduras
' See below, § 573. protested. See above, § 135 (2).
SECURING PERFORMANCE OF TREATIES 681
VII
MEANS OF SECURING PERFORMANCE OF TREATIES
Vattel, ii. §§ 235-261— Hall, § 115— Lawrence, § 134— Phillimore, ii. §§ 54-
63a— Bluntsohli, §§ 425-441— Hefifter, §§ 96-97— Geffoken in HoltzeThdorff,
iii. pp. 85-90— UUmann, g 83— Bonfils, Nos. 838-844— Despagnet, Nos.
461-452— Pradier-Fod^rf, ii. Nos. 1156-1169— Rivier, ii. pp. 94-97—
Nyo, ii. pp. 516-520— Calvo, iii. §§ 1638-1642— Fiore, ii. Nos. 1018-1019,
and Oode, Nos. 789-796— Martens, i. § 115— Nippold, op. cit., pp. 212-
227 — Crandall, op. cit., § 7 — Idman, Le TraiU de Oa/rantie (1913),
pp. 10-40.
§ 523. As there is no international institution which what
could enforce the performance of treaties, and as history ^ye"been
teaches that treaties have frequently been broken, '" Use.
various means of securing their performance have been
made use of. The more important of these means
are oaths, hostages, pledges, occupation of territory,
guarantee.
§ 524. Oaths are a very old means of securing the Oatha.
performance of treaties, which was constantly made
use of, not only in antiquity and the Middle Ages, but
also in modern times. For in the sixteenth and seven-
teenth centuries, all important treaties were still secured
by oaths. During the eighteenth century, however,
the custom gradually died out, the last example being
the treaty of alliance between France and Switzerland
in 1777, which was solemnly confirmed by the oaths
of both parties in the cathedral at Solothurn. The
employment of oaths for securing treaties was of great
value in the times of absolutism, when little difference
used to be made between the State and its monarch.
The more the distinction grew into existence between
the State as the subject of International Law on the
one hand, and the monarch as the temporary chief
organ of the State on the other hand, the more such
oaths fell into disuse. For an oath can exercise its
682
TRKATIES
force on the individual only who takes it, and not on
the State for which it is taken.
Hostages. § 525. Hostagcs are as old a means of securing treaties
as oaths, but they have Hkewise, for ordinary purposes ^
at least, become obsolete, because they have practically
no value at all. The last case of a treaty secured by
hostages is the Peace of Aix-la-Chapelle in 1748, in
which hostages were stipulated to be sent by England
to France for the purpose of securing the restitution
of Cape Breton Island to the latter. The hostages sent
were Lord Sussex and Lord Cathcart, who remained
in France till July 1749.
Pledge. § 526. The pledging of movable property by one of
the contracting parties to the other for the purpose of
securing the performance of a treaty is possible, but
has not frequently occurred. Thus, Poland is said to
have pledged her crown jewels once to Prussia.^ The
pledging of movables is nowadays quite obsolete,
although it might on occasion be revived.
Oooupa- § 527. Occupation of territory, such as a fort or even
Territory, a whole province, as a means of securing the performance
of a treaty, has frequently been made use of with regard
to the payment of large sums of money due to a State
under a treaty. Nowadays such occupation is only
resorted to in connection with treaties of peace stipu-
lating the payment of a war indemnity. Thus, the
preliminary peace treaty of Versailles in 1871 stipulated
that Germany should have the right to keep certain
parts of France under military occupation until the
final payment of the war indemnity of five milUards
of francs.
Again, the Treaty of Peace with Germany provides
that ' as a guarantee for the execution of the present
' Concerning hoetagen nowadays ' See Vattel, ii. § 241, and PhiUi-
taken in time of war, see below, more, ii. § 65.
vol. ii. §§ 258-259.
PABTICIPATION OF THIRD STATES IN TREATIES 683
treaty by Grermany, the German territory situated to
the west of the Ehine, together with the bridgeheads,
will be occupied by Allied and Associated troops for a
period of fifteen years from the coming into force of the
present treaty.' ^
§ 528. The best means of securing treaties, and one Guaran-
which is still in use generally, is the guarantee of other
States not directly affected by them. Such a guarantee
is a kind of accession ^ to the guaranteed treaty, and
is a treaty in itself — namely, the promise of the
guarantor, should occasion arise, to do what is in his
power to compel the contracting party or parties to
execute the treaty.^ Guarantee of a treaty is only one
species of guarantee in general, which will be discussed
below, §§ 574-576a.
VIII
PARTICIPATION OF THIRD STATES IN TREATIES
HaU, § 114— Wheaton, § 288— Hartmann, S 51— Heffter, § 88— Ullmann, § 81
— Bonfils, Xos. 832-834— Despagnet, Xo. 448— Pradier-Fod6r6, ii. Nos.
1127-1150— Rivier, it pp. 89-93— Calvo, iii. §§ 1621-1626— Fiore. u.
Nos. 1025-1031— Martens, i. § 111.
§ 529. Ordinarily a treaty creates rights and duties interest
between the contracting parties exclusively. Never- i^rtioipa-
theless, third States may be interested in such treaties, ^^*° ^
for the common interests of the members of the Family gnished.
of Nations are so interlaced, that few treaties between
single members can be concluded, in which third States
have not some kind of interest. But such an interest,
all-important as it may be, must not be confounded with
' Artiele 428. bars of the Family of Nations
' See below, § 532. guaranteeing, for the present and
* Nippold (p. 226) proposes that a the future, all international treaties.
universal treaty of guarantee should I do not believe that this well-meant
be condnded between aU the mem- proposal is feasible.
684
TREATIES
participation of third States in treaties. Such partici-
pation can occur in five different forms — ^namely, good
offices, mediation, intervention, accession, and adhesion.^
Offiots ^ ^^^' ^ tJ^eaty may be concluded with the help of
and the good officcs, or through the mediation, of a third
tion.'* State, whether these offices be asked for by the con-
tracting parties, or be exercised spontaneously by a
third State. Such third State, however, does not neces-
sarily, either through good offices or through media-
tion, become a real party to the treaty, although this
might be the case. A great many of the most important
treaties owe their existence to the good offices or media-
tion of third Powers.2
interven- § 531. A third State may participate in a treaty in
such a way that it interposes dictatoriaUy between two
States negotiating a treaty, and requests them to drop,
or to insert, certain stipulations. Such intervention
does not necessarily make the interfering State a real
party to the treaty. Instances of threatened inter-
vention of such a kind are the protest of Great Britain
against the preliminary peace treaty concluded in
1878 at San Stefano '^ between Russia and Turkey, and
that of Russia, Germany, and France in 1895 against
the peace treaty of Shimonoseki * between Japan and
China.
Accession. § 532. Of acccssiou there are two kinds. Accession
means, in the first place, the formal entrance of a third
State into an existing treaty, so that it becomes a
party to the treaty, with all rights and duties arising
therefrom. Such accession can take place only with
* That certain treaties concluded to contract on its behalf,
by the suzerain are ipso fado con- ^ The difference between good
eluded for the vassal State does not offices and mediation will be dis-
make the latter participate in such cussed below, vol. ii. § 9.
treaties. Nor is it correct to speak ' See above, § 135 (2).
of participation of a third State in a * See iJ.G., ii. (1895), pp. 457-463.
treaty when a State becomes party Details concerning intervention have
to a treaty through the fact that it been given above, §§ 134-138 ; see
has given a mandate to another State also below, vol. ii. § 60.
PARTICIPATION OF THIRD STATES IX TREATIES 685
the consent of the original contracting parties ; it always
constitutes a treaty of itself. Very often the con-
tracting parties stipulate expressly that the treaty
shall be open to the accession of a certain State. And
the so-called law-making treaties, as the Declaration
of Paris or the Greneva Convention for example, regu-
larly stipulate that all such States as have not been
ori^nally contracting parties, shall haye an opportunity
of acceding.
But there is, secondly, another kind of accession.
For a State may enter into a treaty between other
States for the purpose of guarantee. ^ This kind of
accession mak^ the acceding State also a party to
the treaty : but the rights and duties of the acceding
State are difierent from the rights and duties of the
other parties, for the former is a guarantor only, whereas
the latter axe directiy affected by the treaty.
§ 533. Adhesion is defined as such entrance of a third Adhesion.
State into an existing treaty as takes place, either with
r^ard only to a part of the stipulations, or with regard
only to certain principles laid down in the treaty.
"Whereas through accession a third State becomes a
party to the treaty, with all the rights and duties arising
from it, throtigh adhesion a third State becomes a party
only to such parts or principles of the treaty as it has
adhered to. But it must be specially observed that
the distinction between accession and adhesion is one
made in theory, to which practice frequently does not
correspond. Often treaties speak of accession of third
States where in fact adhesion only is meant, and vice
verseu Thus, Article 6 of the Hague Convention with
respect to the laws and customs of war on land stipu-
lates the possibility of future adhesion of non-signatory
Powers, although accession is meant. ^
* See aboT^e, §528. the term 'adhesion,' the oSScial
* Although the French text uses English version speaks of 'ace^ssioii.'
686
TKEATIES
IX
•EXPIKATION AND DISSOLUTION OF TREATIES
Expira-
tion and
Dissolu-
tion in
oontra-
distino-
tion to
Fulfil-
ment.
Expira-
tion
through
Expira-
tion of
Time.
Vattel, ii. §§ 198-205— HaU, § 116— Westlake, i. pp. 295-297— Lawrence,
§ 134— Halleok, i. pp. 314-316— Taylor, §^ 394-399— Wharton, u. § 137a
— Wheaton, § 275— Moore, v. §§ 7T0-7TS— Bluntsohli, §^ 450-461—
Heffter, § 99— Ullmann, § 85— Bonfils, Nos. 855-860— Despagnet, Noa.
453-455— Pradier-Fod6r6, ii. Nos. 1-200-1218— M6rignhao, ii. p. 788—
RiTier, ii. § 55— Nys, ii. pp. 531-535— Calvo, iii. §§ 1662-16(58— Fiore,
ii. Nos. 1047-1052— Martens, i. § 117— Jellinek, Die rechUiche Satur
der Staatenvertrage (1880), pp. 62-64— Nippold, op. eit., pp. 235-248—
Olivi, Stiit Eatinzione dei Trattaii initmaziotudi (1883)— Schmidt, Ueber
die vSlhemchtliche Clausula Rebus nc itantibua, eto. (1907) — Kanfmann
Das Wtaen des Volierrechta void die Glaumla ite&tu tic ^antibua (1911) —
Bonuooi in Z. V., iv. (1910), pp. 449-471— Orandall, op. cil., §§ 178-186—
Lammasoh, Daa Volkemcht nach dem Kriegt (1917), pp. 130-171.
§ 534. The binding force of treaties may temunate
in four difierent ways, because a treaty may either
expire, or be dissolved, or become void, or be cancelled.^
The grounds of expiration of treaties are, first, expira-
tion of the time for which a treaty was concluded,
and, secondly, occurrence of a resolutive condition.
Of grounds of dissolution of treaties there are three —
namely, mutual consent, withdrawal by notice, and
vital change of circumstances. In contradistinction
to expiration, dissolution, voidance, and cancellation,
performance of treaties does not termiaate their bind-
ing force. A treaty whose obhgation has been per-
formed is as valid as before, although it is then of
historical interest only.
§ 535. All such treaties as are concluded for a certain
period of time only, expire with the expiration of such
time, unless they are renewed, or prolonged for another
period. Such time-expiring treiities are frequently
' The distinction made in the text
between fulfilment, expiration, dis-
solution, Toidanoe, and cancellation
of treaties is, as far as I know,
nowhere sharply drawn, although it
would seem to be of considerable
importance. Voidance and cancella-
tion ^rill be discussed below, §§ 540-
544 and 545 549.
EXPIRATION AND DISSOLXTTION OF TREATIES 687
concluded, and no notice is necessary for their expira-
tion, except when specially stipulated.
A treaty, however, may be concluded for a certain
period of time only, but with an additional stipulation
that the treaty shall, after the lapse of such period, be
vahd for another period, unless one of the contracting
parties gives notice in due time.
§ 536. Different from time-expiring treaties are such Expira-
as are concluded under a resolutive condition, which ^ugh
means under the condition that they shall at once expire i?esoiu-
- . . •' ^ tiTeCon-
with the occurrence of certain circumstances. As soon dition.
as these circumstances arise, the treaties expire.
§ 537. A treaty, although concluded for ever, or for Mutual
a period of time which has not yet expired, may never- °^*°*"
theless always be dissolved by mutual consent of the
contracting parties. Such mutual consent can become
apparent in three different ways.
Krst, the parties can expressly and purposely declare
that a treaty shaU be dissolved ; this is rescission.
Or, secondly, they can conclude a new treaty concerning
the same objects as those of a former treaty, without
any reference to the latter, although the two treaties
are iaconsist«nt with each other. This is substitution,
and in such a case it is obvious that the treaty previously
concluded was dissolved by tacit mutual consent. Or,
thirdly, if the treaty is one that imposes obligations
upon one of the contracting parties only, the other
party can renounce its rights. Dissolution by renuncia-
tion is a case of dissolution by mutuaJ consent, since
acceptance of the renunciation is necessary.
§ 538. Treaties, provided they are not such as are With-
concluded for ever, may also be dissolved by with-^^**^
drawal, after notice by one of the parties. Many
treaties stipulate expressly the possibihty of such
withdrawal, and as a rule contain details in regard
to form, and period, in which notice is to be given
688
TREATIES
for the purpose of vsdtlidrawal. But there are other
treaties which, although they do not expressly stipulate
the possibihty of vsdthdrawal, can nevertheless be dis-
solved after notice by one of the contracting parties.
To that class belong aU such treaties as are either not
expressly concluded for ever, or apparently not intended
to set up an everlasting condition of things. Thus, for
instance, a commercial treaty, or a treaty of alliance
not concluded for a fixed period only, can always be
dissolved after notice, although such notice be not
expressly stipulated. Treaties, however, which are
apparently intended, or expressly concluded, for the
purpose of setting up an everlasting condition of things,
and, further, treaties concluded for a certain period of
time only, are as a rule not notifiable, although they
can be dissolved by mutual consent of the contracting
parties.
It must be emphasised that all treaties of peace, and
aU boundary treaties, belong to this class. It cannot
be denied that history records many cases in which
treaties of peace have not established an everlasting
condition of things, since one, or both, of the contract-
ing States took up arms again, as soon as they recovered
from the exhausting effect of the previous war. But
this does not prove either that such treaties can be
dissolved through giving notice, or that, at any rate as
far as International Law is concerned, they are not
intended to create an everlasting condition of things.
Vital § 539. Although, as just stated, treaties concluded
ciroum- for a Certain period of time, and such treaties as are
stances, apparently intended or expressly contracted for the
purpose of setting up an everlasting condition of things,
cannot, in principle, be dissolved by withdrawal of one
of the parties, there is an exception to this rule. For
it is an almost universally recognised fact that vital
changes of circumstances may be of such a kind as to
EXPIRATION AND DISSOLUTION OF TREATIES 689
ustify a party in demanding to be released from the
(bligations of an unnotifiable treaty.^ The vast maj ority
»f publicists, as well as the Governments of the civilised
Jtates, defend the principle ^ conventio omnis intelligitur
d>us sic stomtihus, and they agree, ^ therefore, that all
reaties are concluded under the tacit condition rebus
ic stantihus.^ That this condition involves a large
tmoimt of danger cannot be denied, for it can be, and
ndeed frequently has been, abused for the purpose of
liding the violation of treaties behind the shield of law,
md of covering shameful wrong with the mantle of
ighteousness. But all this cannot alter the fact that
;his exceptional condition is as necessary for Inter-
lational Law and international intercourse as the very
nile 'pacta sunt servanda. When the existence, or the
idtal development, of a State stands in unavoidable
jonflict with its treaty obhgations, the latter must
' Such a, demand can, of course,
inly be made with regard to execu-
;ory treaties. Executed treaties are
3eyond the reach of such a demand.
* The principle dates back to the
llossatorea, and has found entrance
nto the doctrine of International
[jaw by way of the doctrine of
Municipal Law. See Pfaff, Die
Klauael Bebus sic stantibus in der
Docktrin imd der oesterreichiachen
9eietzgebung (1898) ; Bindewald,
Kechtsgeschichtliche Daratellung der
Klausel Rebus sic stantibus und ihre
^tdlung im Biirgerlichen Gesetzbuch
1901) ; Kaufmann, Die Klausel
Rebm sic stantibus (1907).
' See Bonuooi in Z.V., iv. (1910),
jp. 449-471. Many writers agree to
t with great reluctance only, and in
I very limited sense, as, for instance,
Jrotius, ii, o. 16, § 25, No. 2;
^attel, ii. § 296; Kliiber, § 165.
Some few writers, however, disagree
iltogether, as, for instance, Bynker-
ihoek, Quaest. Jur. public, ii. c. 10,
md Wildman, Institutes of Inter-
uuional Law, i. (1849), p. 175.
Schmidt, op. cit., pp. 26-92, would
ieem to reject the dauavla alto-
jether, yet— see pp. 93-151 — can
VOL. L 2;
nevertheless not help recognising
it in the end, although not as a rule
of law, but as a morally justifiable
rule of policy. A good survey of
the practice of the States in the
matter during the nineteenth cen-
tury is given by Kaufmann, op. cit. ,
pp. 12-37. See also Foster, The
Practice of Diplomacy (1906), pp.
299-305. Very peculiar is the atti-
tude of Lammasch in Das Volker-
recht nach dem Kriege (1917);
whereas he uses every possible argu-
ment on pp. 142-158 to prove that
the clauMdct is not, and has never
been, a recognised rule of customary
International Law, he attempts to
prove on pp. 159-171 that treaties
of alliance and guarantee are not
binding, or, at any rate, are con-
cluded according to the principle,
rebus sic stantibus (p. 170).
■• The application of the principle,
rebu^ sic stantibus, to treaties is
in a decision of the
Supreme Court of Switzerland ; see
Entscheidu/ngen des Schweitzer Bun-
desgerichts, viii. (1882), p. 57. The
case is quoted by Kaufmann, op.c}t. ,
p. 58. — "^
690
TREATIES
give way, for self-preservation and development,
in accordance with the growth and the vital require-
ments of the nation, are the primary duties of every
State. No State would consent to any such treaty as
would hinder it in the fulfilment of these primary duties.
The consent of a State to a treaty presupposes a con-
viction that it is not fraught with danger to its exist-
ence and Adtal development. For this reason every
treaty implies a condition that, if by an imforeseen
change of circumstances an obHgation stipulated in
the treaty should imperil the existence or vital develop-
ment of one of the parties, it shoidd have a right to
demand to be released from the obUgation concerned.
This influence of a vital change of circumstances and
conditions upon the vaHdity of treaties is no isolated
phenomenon, for vital changes of circumstances and
conditions play a great part with regard to the vahdity
of all law. Circumstances alter, not only cases, but
also the law, as the development of Common Law and
Equity shows no less than that of International Law.
Why should a vital change of circumstances not have
an influence upon treaty obHgations, if it has such force
as to change even the law itself ?
The great danger of the clause, rebus sic stantibvs, is
to be found in the elastic meaning of the term ' vital
change of circumstances,' since, in the absence of an
international court to which an appeal could be made,
a State will in each particular case judge for itself
whether or not there is a vital change of circumstances
justif3dng its demand to be released from a treaty
obhgation. As long as there is no international court
in existence, which, on the motion of one of the con-
tracting parties, could set aside a treaty obhgation the
execution of which had become so oppressive that the
party under the obhgation might in justice ask to be
released, there remains the great danger that the clause,
EXPIRATION AND DISSOLUTION OF TREATIES 691
rebus sic starMms, will be abused, for the purpose of
hiding the violation of treaties behind the shield of
law. On the other hand, the danger is somewhat
counterbalanced by the fact that frequent resort to
the clause without justification by any State would
certainly destroy all its credit among the nations.
Be that as it may, it is generally agreed that the
clause, rebus sic stantibus, may only be resorted to in
very exceptional circumstances, and that certainly not
every change of circumstances justifies a State in making
use of it. All agree that, although treaty obUgations
may, through a change of circumstances, become dis-
agreeable, biirdensome, and onerous, they must never-
theless be discharged. All agree, further, that a change
of government, and even a change in the form of a
State, such as the turning of a monarchy into a repubUc
and vice versa, does not alone, and in itself, justify a
State in resorting to the clause. On the other hand,
all agree in regard to many cases in which it could justly
be made use of. Thus, for example, if a State enters
into a treaty of alhance for a certain period of time,
and if, before the expiration of the alHance, a change
of circumstances occurs, so that now the alliance
endangers the very existence of one of the contracting
parties, all will agree that the clause, rebus sic stantibus,
would justify that party in demanding to be released
from the treaty of alhance.
A certain amount of disagreement as to the cases in
which the clause might, or might not, be justly applied
will of course always remain as long as there is no inter-
national court which could decide each case. But the
fact is remarkable that since the beginning of the nine-
teenth century only very few cases of the application
of the clause have occurred. And there is no doubt
that during the last century a conviction became more
and more prevalent that the clause, rd)us sic stantibus,
692
TBEATIES
ought not to give a State the right, immediately upon
the happening of a vital change of circumstances, to
declare itself free from the obligations of a treaty,
but should only entitle it to claim to be released from
them by the other party or parties to the treaty. Accord-
ingly, when a State is of the opinion that the obligations
of a treaty have, through a vital change of circumstances,
become unbearable, it should first approach the other
party or parties, and request them to abrogate the
treaty.^ If such abrogation be refused, a conflict arises
between the treaty obligations and the right to be
released from them, which, in the absence of an inter-
national court that could give judgment in the matter,
cannot be settled juridically. It is only then that a
State may perhaps be justified in declaring that it can
no longer consider itself bound by those obhgations.
The conviction that a State has no right to hberate
itself from the obligations of a treaty, without having
first asked the other party or parties for its release from
them, became apparent when, in 1870, during the
Franco-Gterman War, Russia declared her withdrawal
from the stipulations of the Treaty of Paris of 1856,
which concerned the neutralisation of the Black Sea,
and imposed a restriction upon her in regard to men-of-
war in that sea. Great Eritain protested, and a con-
ference was held in London in 1871. Although by a
treaty signed on March 13, 1871, this conference, con-
sisting of the signatory Powers of the Treaty of Paris
— ^namely, Austria, England, France, Grermany, Italy,
Kussia, and Turkey — comphed with the wishes of
Russia, and abolished the neutralisation of the Black
Sea, it had adopted in a protocol ^ of January 17, 1871,
Ae following declaration : ' Cest un principe essential
du droit des gens qu'aucune Puissance ne peut se deher
' See now FhOlimore, ThTtt Gen- dUcussioii of the same aigmnent
turifj of Treatiet of Peace (1917), ' See Martens, X.R.G., xriii.
pp. I34-13f), for a more detailed p. 278.
EXPIRATION AND DISSOLUTION OF TREATIES 693
des engagements d'un traite, ni en modifier les stipula-
tions, qu'a la suite de Tassentiment ^ des parties con-
tractantes, au moyen d'une entente amicale.'
In spite of this declaration, signed also by herself,
Kussia in 1886 notified her withdrawal from Article 59
of the Treaty of Berlin of 1878 stipulating the freedom
of the port of Batoum.^ The signatory Powers of the
Treaty of Berlin seem to have tacitly consented, with
the exception of Great Britain, who protested. Again,
in October 1908, Austria-Hungary, in defiance of Article
25 of the Treaty of Berlin, 1878, proclaimed her sove-
reignty over Bosnia and Herzegovina, which hitherto
had been under her occupation and administration,
and simultaneously Bulgaria, in defiance of Article 1
of the same treaty, declared herself independent.^
Thus the standard value of the declaration of the Con-
ference of London of 1871 has become doubtful again,
and must remain doubtful until an independent inter-
national court is created with jurisdiction to set aside
a treaty obligation which has become too oppressive.
It has already been mentioned (above, § 167o (2)) that
the Covenant of the League has attempted to deal
with the problem, and reasons have been given (above,
§ 167s (4)) for regarding the means adopted as unsatis-
factory.
' WhateTer be the merits of this declaration contained in the protocol
declaration, it certainly goes too of January 17, 1871, and had
far in decUiring that a State can approached the Powers in the
only free itself from the obligations matter, the abrogation of Article 25
of a treaty by agreement \nth the of the Treaty of Berlin woTild have
other party, for — see below, § 547 — been granted, and she would hare
a State may cancel a treaty if the been eillowed to annex Bosnia and
other party to it violates it. Herzegovina, after having indem-
* S^ Martens, y.R.G., 2nd Ser. nified Turkey. This is to be inferred
xiv. p. 170, and Rolin-Jaequemyns from the fact that, when Anstria-
in S.I., TJ-r. (1887), pp. 37-49. Hungary proclaimed her sovereignty
' See above, § 50 ; Martens, over the provinces, Turkey accepted
}f.S.G., 3rd Ser. ii. pp. 656, 666; compensation, and the Powers, which
and Blociszewski in S.G., xvii. had at first protested and demanded
(1910), pp. 417-449. There is hardly an international conference, con-
any doubt that, if Austria-Hungary sented to the abrogation of Article 25
had not ignored the above-mentioned of the Treaty of Berlin.
en
TREATIES
VCODAyOE OP TRKATIKS
Se^; tke Utnntare qvoted ;>: tke eoauMiK<eBiieat of ; 334.
^oon^ § 540. A tieaty, akhoo^ it b.:^s itather espirecL, imr
^.oj. beeu dissolved, mav nevertheless lose ir^ binding force
by becoming void.^ And such voidance may have
different grounds — namely, extinction of one of tlie
twD contracting parties, impossibiliry of execution,
realisation of the purpose of the treaty otberwEC than
by fulfilment, and, lastly, extiacticai of suck objeT?t as
was concerned in a treaty.
Kitine- § 541. AJl tieaties ccmchided between two States
ODsoftite become void througb the extinctkni of one of the con-
^^^^^ ttacting parties, provided that tiey do not devolve
Parties, upon tiie State wMch succeeds to the extinct State.
That some treaties devolAre upon the successor has been
shown above l§ S2) : but many tteati^ do not. Chi
tins ground all political treaties, sucli as trearies of
alliance, guarantee, neutrality, ^id tlie like, become
void.
impo^- § 54i. All treaties, the execution oi which becomes
^^^ impossible subsequently to tlieir conclusion, are thereby
tioo- rendered voki. A frequenthr quoted example is that
of tihttee Stares concluding a treaty of alliance, and
subsequent war breaking out between twv» of them.
In sucb a eas^e, it is impossible for the tiitiid party to
execute the treaty, and it becomes void.- Ir must,
however, be added that the impossibility of executiffli
^ But <v..h Toidance iv.'a$: aoc Ne ca^ if menttoited in vUcik a treaty
eon&Huid«v.{ «itli tW vo».i^>K of a e<o~entn])y poestippises a c«c«iUK
treaty trom ::« vciy b^inning : $e« fora of gOTenuae&t. aad for tkis
aboT«, j 901. nasc.'. cannot l>e executed vke*
tlk^ fonu vit $ii>T«ctuu«at aniatsaes
^ $ee al» above, « 3^, viieiv t^ a ekange.
CANCELLATION OF TREATIES 695
may be temporary only, and that then the treaty is
not void, but merely suspended.
§ 543. All treaties the purpose of which is reahsed Reaiisa-
otherwise than by fulfilment become void. For example, PurpoLof
a treaty concluded by two States for the purpose of Treaty
inducing a third State to undertake a certain obhga- by Fuifii-
tion becomes void, if the third State voluntarily under- ™®°*"
takes the obligation before the two contracting States
have had an opportunity of approaching it with regard
to the matter.
§ 544. All treaties, the obligations of which concern Extino-
a certain object, become void through the extinction auoh°^
of such obiect. Treaties, for example, concluded inO''Je<'*''s
regard to a certam island become void, when such oemedin
island disappears through the operation of nature ; '^ ™**'''
so do treaties concerning a third State, when such
State merges in another.
XI
CANCELLATION OP TREATIES
See the literature quoted at the oommenoement of § 634.
§ 545. A treaty, although it has neither expired, nor Grounds
been dissolved, nor become void, may nevertheless lose °atio"n.°^'
its binding force by cancellation. The causes of cancel-
lation are four — namely, inconsistency with Inter-
national Law created subsequently to the conclusion
of the treaty, violation by one of the contracting parties,
subsequent change of status of one of them, and war.
§ 546. Just as treaties have no binding force when inoonsist-
concluded with reference to an illegal object, so theya"b^^'"'
lose their binding force when through a progressive seqxient
development of International Law they become incon- nnUonai
sistent with the latter. A valuable example is the ^*"'
696
TREATIES
abolition of privateering by the Declaration of Paris
of 1856, in consequence of which any previous treaties
based on privateering as a recognised institation of
International Law were ijtso facto cancelled, provided
that aU the parties to such treaties were signatory
Powers of the Declaration of Paris. This must be
maintained in spite of the fact that Protocol No. 24
of the Congress of Paris ^ contains the following : ' Sur
une observation faite par MM. les Plenipotentiaires de
la Russie, le Congres reconnait que la presente resolu-
tion, ne pouvant avoir d'efEet retroactif, ne saurait
invaUder les conventions anterieures.' This expres-
sion of opinion can only mean that previous treaties
with such States as were not and would not become
parties to the Declaration of Paris were not i-pso facto
cancelled by the declaration. Be that as it may, sub-
sequent Municipal Law can certainly have no derogating
influence upon existing treaties. On occasions, indeed,
subsequent Municipal Law does create for a State a
conflict between its treaty obligations and such law.
Li such a case this State must endeavour to obtain a
release by the other contracting party from these
obligations.^
Violation § 547. Violation ^ of a treaty by one of the contracting
the°Con^ States does not ipso facto cancel the treaty ; but it is
S^^s within the discretion * of the other party to cancel it on
this ground. There is indeed no unanimity among
writers on Latemational Law in regard to this point,
since a minority make a distinction between essential
* SeelIartens,-V.i}.G.,xv.pp.768- 130 U.S. 238. See also Moore, t.
769. § 774.
' That municipal courts must 3 g^ Mvers in A J -a. (1917)
apply the subsequent M«^\=ipal Law, g' ^^ ^ '^^^ ^_
although It conflicts with previous f^, . ' „„raher of tteatv
treaty obUgations, there is no doubt, i?*. where a numter ot treaty
.'v ■ I. A iv x!(ii Violations are discussed,
as has been pointed out above, § 21.
See The Cherotee Tobacco, 11 Wall * This was recognised in 1913 by
616 ; Whitney v. Hobertgon, 124 the United States Supreme Court
U.S. 190; BolUUr v. Dommguez, in Chariton v. Kelly, 22S U.S. HI.
CANCELLATION OF TREATIES 697
and non-essential stipulations of the treaty, and main-
tain that only violation of essential stipulations creates
a right for the other party to cancel the treaty. But
the majority of writers rightly oppose this distinction,
maintaining that it is not always possible to distinguish
essential from non-essential stipulations, that the bind-
ing force of a treaty protects non-essential as well as
essential stipulations, and that it is for the faithful
party to consider for itself whether violation of a treaty,
even in its least essential parts, justifies its cancellation.
The case, however, is different, when a treaty expressly
stipulates that it should not be considered broken
merely by violation of one or another part of it. And it
must be emphasised that the right to cancel the treaty
on the ground of its violation must be exercised within
a reasonable time after the violation has become known.
If the Power possessing such a right does not exercise it
in due time, it must be taken for granted that such right
has been waived. A mere protest, such as the protest
of England in 1886 when Russia withdrew from Article
59 of the Treaty of Berlin of 1878, which stipulated
the freedom of the port of Batoum, neither constitutes
a cancellation, nor reserves the right of cancellation.^
§ 548. A cause which if so facto cancels treaties is Sub-
such subsequent change of status of one of the con- change of
tracting States as transforms it into a dependency of status of
another btate. As everythmg depends upon the merits Contraot-
of each case, no general rule can be laid down as regards Parties,
the question when such change of status must be con-
sidered to have taken place, or, further, as regards the
other question as to the kind of treaties cancelled by
such change.^ Thus, for example, when a State becomes
a member of a Federal State, it is obvious that all its
' This was recognised in 1913 by ^ See Moore, v. § 773, and above,
the United States Supreme Court § 82, pp. 147, n. 1, and § 521,
in Charlton v. Kelly, 229 U.S. 447.
698
TREATIES
treaties of alliance are if so facto cancelled, for in a
Federal State the power of making war rests with the
Federal State, and not with the several members. And
the same is vaHd as regards a hitherto full sovereign
State which comes under the suzerainty of another
State. On the other hand, a good many treaties retain
their binding force in spite of such a change in the
status of a State, — all such treaties, namely, as concern
matters in regard to which the State has not lost its
sovereignty through the change. For instance, if the
constitution of a Federal State stipulates that the
matter of extradition remains wholly within the com-
petence of the member-States, all treaties of extradition
concluded by members with third States, previously to
their becoming members of the Federal State, retain
their binding force.
War. § 549. How far war is a general ground of cancellation
of treaties is not quite settled. Details on this point
will be given below, vol. ii. § 99.
XII
RENEWAL, RECONFIRMATION, AND REDINTEGRATION
OF TREATIES
Vattel, ii. § 199— Hall, § 117— Taylor, § 400— Hartmann, § 57— UUmami,
§ 85— Bonfila, Nos. 851-854— Despagnet, No. 456— Pradier-Fod6r6, ii.
Nos. 1191-1199— Rivier, ii. pp. 143-146— Calvo, ui. §§ 1637, 1666, 1669
— Fiore, ii. Nos. 1048-1049, and Code, Nos. 840-843.
Renewal § 550. Renewal of treaties is the term for the prolonga-
Treaties. ^^^''^' before their expiration, of such treaties as were
concluded for a hmited period of time. Renewal can
take place through a new treaty, and the old treaty
may then be renewed as a whole, or only in part. But
the renewal can also take place automatically, since
many treaties concluded for a certain period stipulate
RENEWAL AND REDINTEGRATION OF TREATIES 699
expressly that th.ey are to be considered as renewed for
another period, in case neither of the contracting parties
has given notice.
§ 551. Reconfirmation is the term for an express Reoon-
statement, made in a new treaty, that a certain previous ^'^'"**^°°-
treaty, whose validity has, or might have, become doubt-
ful, is stiU, and remains, vaUd. Reconfirmation takes
place after such changes of circumstances as might be
considered to interfere with the vahdity of a treaty ;
for instance, after a war, as regards such treaties as
have not been cancelled by the outbreak of war. Recon-
firmation can be given to the whole of a previous treaty,
or to parts of it only. Sometimes reconfirmation is
given in a precise way, namely, where a new treaty
stipulates that a previous treaty shall be incorporated
in itself. It must be emphasised that, in such a case,
those parties to the new treaty, which were not parties
to the previous treaty, do not now become so by its
reconfirmation, the latter applying to the previous
contracting parties only.
§ 552. Treaties which have lost their binding force, Redinte-
through expiration or cancellation, may regain it s''**'""-
through redintegration. A treaty becomes redinte-
grated by the mutual consent of the contracting parties ;
this is, as a rule, given in a new treaty. Thus it is
usual for treaties of peace to redintegrate all those
treaties cancelled through the outbreak of war, the
stipulations of which the contracting parties do not
want to alter.
Without doubt, redintegration need not necessarily
take place by treaty, as it is theoretically possible for
the contracting parties tacitly to redintegrate an expired
or cancelled treaty by a line of conduct which makes
their intention to redintegrate the treaty apparent.
However, I do not know of any instance of such tacit
redintegration.
700 TEEATIES
xm
INTERPBETATIOX OF TREATIES
Grotins, ii. c 16— Vattel, ii. §§ 262-323— Hall, M 111-112— PhilUiDore, iL
s^ 64-95— HaUeck, L pp. 317-327— Taylor, si 377-393— Walker, § 31—
Wheatx>n, S 287— Moore, v. gi 763-764— Hershey, Xol 299— Heffter, 1 95—
UTlmaiin, § S4 — Heilbom in Stier-Somlo, L pp. 72-78 — Bonfils, Xos. 835-
837 — De^iagiiet, Xo. 430 — Pradier-Fodfert, iL Xo=. 1171-1189 —
M^rignhac, ii. p. 678 — ^Nys, ii. pp. 520-5S — ^Rivier, iL pp. 122-12-3 —
Oalvo, iiL §1 1649-1660— Fiore, ii. Xos. 1032 1046, and Cede, Xoa. 797-
821— Martens, L § 116— WesUake, i. pp. 293-29*— Foster, The Praetice
of IHplomaey (1906), pp. 284-297— Crandall, op. at., « 160-171— Pick
in R.6., xviL (1910), pp. 5-35— Hyde in ^..A., iii. (1909), pp. 46-61.
Authentic § 553. Neither customary nor conventioiial roles of
ta^^ International Law exist concerning the interpretation
^^*''^ of treaties. Grotius and the later authorities appHed
promise the rulcs of Roman Law respecting interpretation in
general to the interpretation of treaties. On the whole,
such application is correct, in so far as those rules of
Roman Law are full of common sense. But it must be
emphasised that the interpretation of treaties is, in the
first instance, a matter of consent between the con-
tracting parties. If they choose a certain interpreta-
tion, no other has any basis. It is only when they
disagree, that an interpretation based on scientific
grounds can ask a hearing. And these scientific grounds
can be no other than those provided by jurisprudence.
The best means of settling questions of interpretation,
provided the parties cannot come to terms, is by arbi-
tration, as the appointed arbitrators will appty the
general rules of jurisprudence.^ Xow in regard to
interpretation given by the parties tiemselves, there
are two different ways open to them. They may either
agree informally upon the interpretation, and execute
the treaty accordingly : or they may make a supple-
^ See Article 13 of the Covenant . . . are generally snitable for snb-
of the Leagne of Xatioas : ° Disputes mission to arbitration.'
U to the interpretation of a treaty
INTEBPEETATIOX OF TREATIES 701
mentary iareaty, and provide therem for sach interpre-
tation of the previous treaty as they choose. In the
latter case, one speaks of ' authentic ' interpretation,
by analogy with the authentic interpretation of Muni-
cipal Law, given expressly by a statute. Nowadays,
however, treaties very often contain the so-caUed ' com-
promise clause.' This is a clause providing that in case
the parties do not agree on questions of interpretation,
these questions shall be settled by arbitration. Italy
and Switzerland regularly endeavour to insert that
clause in their treaties.
§ 554. It is of importance to enumerate some rules Rnies of
of interpretation^ which recommend themselves onj^^^'^
account of their suitability.'- »•"•*
1 - T T recom-
(1) All treaties must be interpreted according to mend
their reasonable, in contradistinction to their Mteral, geires.
sense. An excellent example illustrating this rule is
the following, which is quoted by several writers : —
In the interest of Great Britain, the Treaty of Peace of
Utrecht of 1713 stipulated, in Article 9, that the port,
and the fortifications, of Dunkirk should be destroyed,
and never be rebuilt. France comphed with this
stipulation ; but at the same time b^an building an
even larger port at Mardyck, a league off Dunkirk.
Great Britain protested, on the ground that France, in
so acting, was violating the reasonable, although not
the literal, sense of the Peace of Utrecht ; and France
in the end recognised this interpretation, and discon-
tinued the building of the new port.
(2) The terms used in a treaty must be interpreted
according to their usual meaning ba. the language of
everyday hfe, provided that they are not expressly
* The whole matter of interpre- ' On the -violation of treaties in
tation of treaties is dealt with in conseqaence of defective drafting,
an admirable way by Phillimore, ii. see Myers in^.y^, xi. (19171, pp. 338-
?i 64-95 ; see also Moore, v. § 763, 565.
and Wharton, ii. § 133.
'>2
TREATIES
used in a oert^n technical meaning, or tiiat anotiiex
mffSHimg h not apparent from the context.
(3) It i: ta^n for granted that lite contracting
parties intend something reasonable., gomething adequate
to tlie purpose of the treaty, ^id somethins not mcon-
gffitent with, generally recc^nised prindples of Inter-
national Iaw, nor witli pievioos treaty obligalaons
towards tiiird States. If, therefore, tlie meaning ol a
stipolation i^ ambigoons, the reasonaUe Tneanir^ k
to be preferred to the unreascmaUe, the more reason-
able to the less reasonable, the adeqtiate tneaning to the
meaning not adequate for the purpose of the treaty,
the consistent meaning to tiie meaning incoi^btent
witJi geneiaBy reoognked principlesaf Inteamatirai^ Law,
andwidi prerioos treaty obhgatioi^ towards third States.
(4) The whole of the treaty must be takrai into
coi^dexation, if tiie meaning erf any one <rf its stipTiIa-
tions 15 donbtiol; and not only the wording of the
treaty, but also ite purpose, die motrces wfaidi kd to
its oondi^on, and the oondifioi» psvailing at fite time.
(5) The pdne^le, in dtibio ntiiius, mnst be a^j^ied in
interpreting treaties. If, therefore, the meaning of a
stipulation is ambiguous, that wK^Tiing is to be pre-
f eired whidi is k^ onerous for tlie p^iy ajgaiTnhig
an obligation, or which intofses k^ widi the terri-
tcHJal and pecscHial si^iemacy of a party, or involves
less general restektktns upon the praties.
(6) PrevioTis treati^ between the same parties, raid
treaties between one of die praties and third parties,
may be referred to for the purpose of cleanrs up the
meaning of a stipulation.
(7) If tLere is a discrepancy between tLe dear merai-
ing of a stiDulation and the intention of one <rf the
parties as declared durii^ the negotiations whidi pre-
ceded tie signing of a tzeaty, the dec^on must depoid
on the merits of the special case. If, for instaiice, the
IXTKEPEETAXTOX OF TREATIES 703
disczepaiicy was produced tkrou^ a mere clerical error,
or by some other kind of mistake, it is obvious that an
interpretation is necessary 'which is in accordance with
the real intentions of the contracting parties.
(8) In case of a discrepancy between tiie clear mean-
ing of a stipulation and the intentions of all tlie parties
as unanimously declared during the negotiations which
preceded the signing of l^e tzeaty, the meaning which
corresponds to the real intentions of the parties must
prevail over the meaning of the text. If, therefore —
as in the case of the unratified Declaration of London
of 1909 — the Report of the Drafting Committee contains
certain interpretations, and is unanimously acc^ted
as authoritative by all the negotiators previous to the
jdgning of the treaty, their interpretations must prevail.
(9) If two meanings of a stipulation are admissible ac-
cording to the text of a treaty, such meaning is to prevail
as tiie party proposing the stipulation knew at the time
to be the meaning preferred by the party accepting it.
(10) If it is a matter of common knowledge that a
State upholds a meaning of a term which is different
from the generally accepted meaning, and if never-
theless another State enters into a treaty witii the
former in which such term is made use of, that meaning
must prevaQ which is upheld by the former. H, for
instance. States conclude commercial treaties with the
United States of America in which the most-favoured-
nation clause ^ occurs, the particnlar meaning which
the United Stat^ attributes to this clause must prevaiL
(11) If the mftaTiing of a stipulation is ambiguous,
and one of the contracting parties, at a time before a
case arises for the application of the stipulation, makes
known what meaning it attributes to it, the other party
or parties cannot, when a case for its appHcation does
occur, insist upon a different meaning. They ought to
^ See below, § 580.
704
TREATIES
have previously protested, and taken the necessary
steps to secure an authentic interpretation of the
ambiguous stipulation. Thus, when, in 1911, it became
obvious that Grermany and other Continental States
attributed to Article 23 {h) of the Hague Regulations
respecting the Laws and Usages of ^yar on Land a
meaning different from the one preferred by Great
Britain, the British Foreign Office made the British
interpretation of this axticle known.^
(12) lb is to be taken for granted that the parties
intend the stipulations of a treaty to have a certain
effect, and not to be meaningless. Therefore, an inter-
pretation is not admissible which would make a stipula-
tion meaningless, or ineffective.
(13) All treaties must be interpreted so as to exclude
fraud, and so as to make their operation consistent with
good faith.
(14) The rules commonly apphed by the courts for
the interpretation and construction of Municipal Laws
are only applicable to the interpretation and construc-
tion of treaties, and in particular of law-making treaties,
in so far as they are general rules of jurisprudence. If
they are rules sanctioned only by the Municipal Law,
or by the practice of the courts, of a particular country,
they may not be apphed.
(15) Unless the contrary is expressly provided,^ if a
treaty is concluded in two languages and there is a dis-
crepancy between the meaning of the two different texts,*
each party is only bound by the text in its own language.
Moreover, a party cannot claim the benefit of the text
in the language of the other party.
' See Oppenheim, Tl>e Leagvr of Italian ; but it is expressly deeUred
Natimis (1919), p. 48. that the French t^xt shall prevail,
* The Treaty of Peaee with Oer- except in the Leagvie of Nations and
many is in French and English ; Labour Parts,
and it is expressly stipulated that
both texts ai-e authentic. The ' See Fost«r, The Practice of
Treaties of Peace with Austria and Diplomacy (1906), where some in-
Bulgaria are in French, English, and teresting oases are discussed.
CHAPTER III
IMPORTANT GROUPS OF TREATIES
I
IMPORTANT LAW-MAKING TREATIES
§ 555. Law-makmg treaties * have been concluded important
ever since International Law came into existence. It ^ting
was not until the nineteenth century, however, that Treatiea a
1 1 1- • i-iT-T- product of
there were law-making treaties of world-wide import- the Nino-
ance. Although at the Congress at Miinster and^^„ry
Osnabriick all the European Powers then existing, with
the exception of Great Britain, Russia, and Poland,
were represented, the WestphaUan Peace of 1648, to
which France, Sweden, and the States of the German
Empire were parties, and which recognised the inde-
pendence of Switzerland and the Netherlands and the
practical sovereignty of the 332 States of the German
Empire, was not of world-wide importance, in spite of
the fact that it contained various law-making stipu-
lations. And the same may be said with regard to
all other treaties of peace between 1648 and 1815. The
first law-making treaty of world-wide importance was
the Pinal Act of the Vienna Congress, 1815. But it
must be particularly noted that not all of these are
pure law-making treaties, since maaiy contain other
stipulations besides those which are law-making.
* Concerning the conception of law-making treaties, see above, §§18
and 492.
VOL. I. 2 Y '05
706 mPORTAXT GBOTTPS OF TREATIES
Final Act § 556. The Final Act of the Tiejma Congress,* agned
Vienna on JuDe 9, 1S15, bv Great Britain, Austria, France,
*-'°°s'^*^ Pori^igaL Pnis.sia. Russia, Spain, and STreden-Xorw-ay,
comprised law-making stipulations ot worid-wide import-
ance concerning four points — namely, the perpetual
neutrahsation of Switzerland (Article 118, No. 11) ;
free navigarion on so-called international rivers (Articles
108-117) ; the aboUtion of the negro slave trade (Article
lis. No. 15) ; and the different classes of diplomatic
envoys (Article 118, Xo. 17).
Protocol § 557. The Protocol of November 21 of the Congress
^1,^ of Aix-la-ChapeUe,2 ISIS, signed by Great Britain,
^^^^j^- Austria, France, Prussia, and Russia, contained the
important law-making stipulation concerning the estab-
hshment of a fourth da^ of diplomatic envoys, the
so-cafled " Ministers Resident,' to rank before the
Charges d'AfEaires.
^^<rf § 558. The Treaty of London ^ of Xovember 15, 1831,
ofissi. signed by Great BritaiD, Austria, France. Prussia,
Ru^a, and Belgium, comprised in its Article 7 the
important law-making stipulation concerning ihe per-
petual neutralisation of Belgium; but arrangements
are about to be made, under whidi Belgium wiQ no
longCT be permanentiy neutralised.
»^- § 559. The Declaration of Paris * of April 16, 1856,
Paris. signed by Great Britain, Austria, France, Prussia,
Russia, Sardinia, and Turkey, is a pure law-making
treaty of the greatest importance, stipulating four rules
with regard to sea warfare — namety, that privateerii^
is abolished ; that the neutral flag covers enemy goods
with the e:sception of contraband of war ; tiiat neutral
goods, contraband excepted, cannot be confiscated even
' Martens. Xi^.. ii. p. oT9l See ' Martens, X.Jf,, xi. p. 39a See
Aiisreber;. Zf Ocmifns df Tifmne «t Sesouups. £• A'nrtra/tte' de im
i(S Tniius de 2Sl5\i: v. Is.. l*o3>. Btigiqvie (1902).
' Martens, X.if,, iv. p. 64S. See
Angeba^, op. eit, ' Martens, XitO., it. p. TSJ.
mPOKTAST LAW-MAEUfG TKEATIES 707
■witeai sailn^ under the enemj flag ; that a blodade
must be effiective to be binding.
Tlizoii^ aoc^^on dum^ 1^^6, the foIlowiDg otiier
Stat^ became parties to this Ixeatf: Ai^graitii^ Belgiom,
Braal, QuK, Draimarfr, Ec^iador, Greece, Guatemala,
Haiti, Holland, Pern, Portngal, Sweden-I?<Hwaj. and
Switaedand. Japan acceded in 1886, Spain in 1908,
and Mexico in 1909.
1 560. The G^ieva OonTention * of Angost 22, 1864, Csnen
and ihat of July 6, 1906, are pure law-making treaties ^^™'
for the amelioiaiion of the conditions of the wounded
of armies in l^e fidd. The Geneva Gonv^raiticm of 1861
was origmany signed only by Switsedand, Baden,
Bd^om, Denmarir, France, H^se, Holland, Italy.
Fortn^tL Pro^ia, Spain, and Wnrtembiirg, bat in time
almogt all other civilised States have acceded. A
txeaty^ containing articles additional to Ih^e G^ieva
Cbnvention of 1864 was signed at Geneva on October
20, 1868, but was not ratified. A better fate \ras in
store for the Geneva Convention ' of 1906, which was
agoed by tiie delegates of thirty-five States, and has
been ratified by not less than twenty-^ States. At
least eight other Stat^ have acceded- It is of import-
ance to emphasise that tiie (Convention of 1864 is not
oatirdy replaced by tiie Gonv^.faon of 1906, in so far
as the f onner rranains in force between those Powers
which are parties to it witiiout being parties to the
latter. Aod it must be remiranbeied that a conveation
for the adaptation to sea war&a« of the prindples of
the GSeneva Qmvraition was signed at both tiie first
and tiie 8ea>nd Hagne Conferences.
§ 561. The Treaty of London * of May 11, 1867,
* ilailiaB, y.R.e., xriii. p. 807. ' M«rh-ms, X.R.6., &d Ser. iL
See Loeder, Dit Gvafrr Gmtiinaion p. 323.
(1876), and Mmia^ Oa^ersadkwi^en * Ibrtas, S'.S.G., xriiL p. 445.
Aer die Gaifer Ooiatailifm (1901|. See 'WatapaA, Le LmnaaboMrg
' Tyfurt^K, N.R.6., xnii. pl 612. teutrt (190^
7(B IMPOETANT GROUPS OF TREATIES
Treaty of signed by Great Britain, Austria, Belgium, France,
1867.°"° Holland, Italy, Prussia, and Eussia, comprised in its
Article 2 the important law-making stiptdation con-
cerning the perpetual neutralisation of Luxemburg ;
but arrangements are now foreshadowed under which
Luxemburg will no longer be permanently neutralised.
Deoiara- § 562. The Declaration of St. Petersburg ^ of December
Peters- ' H, 1868, sigucd by Great Britain, Austria-Hungary,
^"''s- Belgium, Denmark, France, Greece, HoUand, Italy,
Persia, Portugal, Prussia and other German States,
Russia, Sweden-Norway, Switzerland, and Turkey —
Brazil acceded later on — is a pure law-making treaty.
It stipulates that projectiles of a weight below 400
grammes (14 ounces) which are either explosive or
charged with inflammable substances shall not be
made use of in war.
Treaty of § 563. The Treaty of Berhn 2 of July 13, 1878, signed
1878."° t)y Great Britain, Austria-Hungary, France, Germany,
Italy, Russia, and Turkey, was law-making with regard
to Bulgaria, Montenegro, Roumania, and Serbia.
General § 564. The General Act of the Congo Conference ^ of
Congo ^ Berhn of February 26, 1885, signed by Great Britain,
eno^^'and -A-Ustria-Hungarv, Belgium, Denmark, France, Germany,
Conven- Holland, Italy, Portugal, Russia, Spain, Sweden-Norway,
Germain.' Turkey, and the United States of America,* was a law-
making treaty of great importance, stipulating : freedom
of commerce for all nations within the basin of the river
Congo ; prohibition of slave transport within that
basin ; optional neutralisation of Congo territories ;
freedom of navigation for merchantmen of all nations
on the rivers Congo and Niger ; and, lastly, the obhga-
tion of the signatory Powers to notify to one another
' Martens, N.R.O., xvlii. p. 474. p. 414. SeePatzig, Die afrikaniache
" Martens, N.R.O., 2nd Ser. iii. Gonferenz und der Gongoataat (1885).
p. 449. See Mulas, II Congresao di
Berlino (1878). * The United States did not, how-
" Martens, N.R.O. , 2nd Ser. x. ever, ratify; see Moore, v. p. 564.
IMPORTANT LAW-MAKING TREATIES 709
all future occupations on the coast of the African
continent.
But by a convention signed at St. Germain on
September 10, 1919/ by the United States of America,
Belgium, the British Empire, France, Italy, Japan, and
Portugal, for the purpose of revising these arrange-
ments, the General Act of the Berhn Congo Conference
was abrogated, in so far as it was binding between the
Powers which are parties to the new convention. This
convention makes renewed provision for commercial
equality, within the basin of the Congo as defined by
the Berhn Act, among the signatory Powers and those
States which are invited to accede ; and for freedom
of navigation for merchantmen of all such States on the
rivers Congo and Niger. The parties undertake to
endeavour to secure the complete suppression of slavery,
and of the slave trade by land and sea, and to protect
rehgious, scientific, and charitable institutions organised
by any one of them, or by a State invited to accede.
The convention is to be revised by the signatory
Powers at the end of ten years ; any dispute arising
under it, which cannot be settled by negotiation, is to
be submitted to arbitration, in conformity with the
Covenant of the League of Nations. The article in the
Berhn Act requiring notification of occupations does not
appear in the new convention. Germany,^ Austria,^
and Bulgaria * are bound to accept these arrangements,
and probably Hungary and Turkey will be placed under
a similar obligation, by the Treaties of Peace.
§ 565. The Treaty of Constantinbple ^ of October 29,
1888, signed by Great Britain, Austria-Hungary,®
' Treaty Ser. (1919), No. 18. ° As to the consent given by
Cmd. 477. Austria in the Treaty of Peace with
' Article 126. Austria to the transfer to Great
' Article 373. Britain of the powers conferred on
■■ Article 290. the Sultan by the Treaty of Con-
' Martens, N.B.G., 2nd Ser. xv. stantinople, see above, § 183.
p. 557. See above, § 183.
710 IMPORTANT GROUPS OF TREATIES
Treaty of Fiaiice, Germany,* Holland, Italy, Russia, Spain, and
tinopW Turkey,'^ is a pure law-making treaty, stipulating the
^*®*- permanent neutralisation of the Suez Canal, and the
freedom of navigation thereon for vessels of all nations.
General § 566. The General Act of the Brussels Anti-Slavery
B^isseu ^ Conference, 2 signed on July 2, 1890, by Great Britain,
^^ Austria-HuQgary, Bel^um, the Congo Free State,
Confer- Denmark, France,' Germany, Holland, Italy, Persia,
^rcon- Portugal, Russia, Sweden-Norway, Spain, Turkey, the
veirtaons Uufted Statcs of America, and Zanzibar, was a law-
Germain. makiTig treaty of great importance, which stipulated for
a system of measures for the suppression of the slave
trade in Africa, and, incidentally, restrictive measures
concerning the spirit trade in certain parts of Africa.
To revise the stipulations concerning this spirit trade,
the Convention of Brussels * of November 3, 1906, was
signed by Great Britain, Germany, Belgium, Spain, the
Congo Free State, France, Italy, Holland, Portugal,
Russia, and Sweden.
But by two conventions signed at St. Germain on
September 10, 1919, for the purpose of revising these
arrangements, one being the convention referred to
above, § 564, and the other bring a convention relating
to the hquor traffic in Africa,^ to which the same
States were parties, the Greneral Act of the Brussels
Anti-SIaveiy Conference, and its accompanying declara-
tion, and all the provisions of former general conven-
tions dealing with the hquor trade in Africa, were
abrogated, in so far as they were binding between the
parties to the new conventions. The first, as has already
' As to the consent of Germany Der afrikanuchf SHavenhandd und
to the transfer to Great Britain of die Brusgder Conferemea (1891).
the rights of the Saltan under this ' But France only ratified this
treaty, see above, § 183. Turkish General Act with the exclnsion of
rights will probably be transferred certain articles.
under the Treaty of Peace with ' Martens, S^.R.G., 3rd Ser. i.
Turkey. p. 722.
' Martens, X.B.G., 2nd Ser. iri * Treaty Ser. (1919), Xo. 19, Cmd.
p. 3, and xzv. p. 643. See Lentner, 478.
IMPORTANT LAW-MAKING TREATIES 711
been mentioned,^ contains an undertaking by the signa-
tory Powers to endeavour to secure the complete sup-
pression of slavery and the slave trade. The second
prohibits altogether a harmful class of beverage known
as ' trade spirits,' and all distilled beverages containing
ingredients injurious to health, over the whole African
continent, excepting Algiers, Tunis, Morocco, Libya,
Egypt, and South Africa. A heavy miTiiTrmTn duty is
imposed on the import into this area of all distilled
beverages which do not fall within the prohibited classes,
and even these may not be manufactured anywhere
within the area, except in the Itahan colonies. Each
party is to publish an annual report showing the quan-
tities of hquors manufactured in, or imported into, this
area; and this report is to be sent to the Secretary-
Greneral of the League of Nations, and to a central
international office, to be established under the conven-
tion.2 The convention may be modified by common
agreement after five years ; any dispute arising under
it, which cannot be settled by negotiation, is to be sub-
mitted to arbitration, in conformity with the Covenant
of the League of Nations. Germany,^ Austria,* and
Bulgaria^ are bound to accept the convention, and
probably Hungary and Turkey wUl be placed imder a
similar obhgation, by the Treaties of Peace.
§ 567. The Final Act of the Hague Peace Conference ® Two
of July 29, 1899, was a pure law-making treaty com- tioL^of
prising three separate conventions — namely, a con-^^^''^*
vention for the peaceful adjustment of international Peace
differences, a convention concerning the law of land ferenoe.
warfare, and a convention for the adaptation to mari-
time warfare of the principles of the Geneva Convention
' See above, § 564. « Martens, X.R.6., 2nd Ser. xxvi.
= See above, § 471e. p. 920. See HoUs, The Peace Cm-
' Article 126. ference at the Hague (1900), and
* Article 373. Mferignhao, La Conference inter-
' Article 290. natimale de la Paix (1900).
712 IMPORTANT GROUPS OF TREATIES
of 1864, — and three declarations — namely, a declaration
prohibiting, for a term of five years, the discharge of
projectiles and explosives from balloons, a declaration
concerning the prohibition of the use of projectiles the
only object of which is the difiusion of asphyxiating or
deleterious gases, and a declaration concerning the
prohibition of so-called dum-dum buUets. All these
conventions, however, and the first of these declarations
have been replaced by the General Act of the Second
Hague Peace Conference, and only the last two declara-
tions are still in force. All the States which were repre-
sented at the Conference are now parties to these
declarations except the United States of America.
Treaty of § 568. The so-callcd Hay-Pauncef ote Treaty of
tonrf'"^ Washington^ between Great Britain and the United
1901- States of America, signed November 18, 1901, although
law-making between the parties only, is nevertheless
of world-wide importance, because it neutrahses per-
manently the Panama Canal, which was then in course
of construction, and stipulates free navigation thereon
for vessels of all nations.^
§ 568a. The Final Act of the Second Hague Peace
Conference of October 18, 1907, is a pure law-making
treaty of enormous importance, comprising the following
thirteen conventions and a declaration ^ : —
^ Martens, N.B.O., 2nd Ser. xxx. been published from time to time,
p. 631. showing the States which had then
' It ought to be mentioned that ratified, or acceded to, the various
Article 5 of the Boundary Treaty of conventions. See the table in Soott
Buenos Ayrea, signed by Argentina in The Hague ConverUiona and De-
and Chili on July 23, 1881 — see clarations of 1899 and 1907 (1915),
Martens, N.R.O., 2nd Ser. xii. p. which is vouched for by the State
491 — contains a law-making stipu- Department at Washington as being
lation of world-wide importance, correct at that date. A more recent
because it neutralises the Straits of table is to be found in Hall, 7th ed.
Magellan for ever, and declares them (1917), p. 818. During 1917 China
open to vessels of all nations. See acceded to the ivth, vith, viith,
above, § 195 n., and below, vol. ii. viiith and ixth Conventions. Official
§ 72. announcements of ratifications and
' All the conventions except the accessions are made in Great Britain
xiith have been ratified by a large in the Treaty Series of Parliamentary
number of the signatory Powers, Papers,
but by no means all. Tables have
IMPORTANT LAW-MAKING TREATIES 713
I. Convention for the Pacific Settlement of International Disputes. Oonven-
— All forty-four States represented at the Conference signed ^°°^ *"•*
except Nicaragua, but some signed with reservations. Nicaragua tion of
acceded later. At least twenty-four States have ratified, with Second
or without reservations. Peme
II. Convention respecting the Limitation of the Employment of Confer-
Forcefor the Recovery of Contract Debts. — Great Britain, Germany, ^"°®'
the United States of America, Argentina, Austria-Hungary,
Bolivia, Bulgaria, ChiK, Colombia, Cuba, Denmark, San Domingo,
Ecuador, Spain, France, Greece, Guatemala, Haiti, Italy, Japan,
Mexico, Montenegro, Norway, Panama, Paraguay, Holland, Peru,
Persia, Portugal, Russia, Salvador, Serbia, Turkey, and Uruguay
signed this convention ; China, Nicaragua, and Liberia acceded
later. Some of the South American States signed with reser-
vations. Seventeen States have ratified, with or without
reservations.
III. Convention relative to the Opening of Hostilities. — All the
States represented at the Conference signed except China and
Nicaragua ; both, however, acceded later. Twenty-five of the
signatory States have ratified. Liberia acceded in 1914.
IV. Convention concerning the Laws and Customs of War on
Land. — All the States represented at the Conference signed
except China, Spain, and Nicaragua, but Nicaragua and China
acceded later. Some States made reservations in signing. Twenty -
five signatory States have ratified, with or without reservations.
Liberia acceded in 1914.
V. Convention respecting the Rights and Duties of Neutral Powers
and Persons in War on Land. — All the States represented at the
Conference signed except China and Nicaragua, but some States
made reservations. Both China and Nicaragua acceded later.
At least twenty-three States have ratified ; Great Britain has
not done so. Liberia acceded in 1914.
VI. Convention relative to the Status of Enemy Merchant-ships
at the Outbreak of Hostilities. — AH the Powers represented at the
Conference signed except the United States of America, China,
and Nicaragua, but the last two States acceded later. Some
States made reservations in signing. Twenty-four States have
ratified, with or without reservations. Liberia acceded in 1914.
VII. Convention relative to the Conversion of Merchant-ships
into War-ships. — All the Powers represented at the Conference
signed except the United States of America, China, San Domingo,
Nicaragua, and Uruguay, but Nicaragua acceded later. Turkey
714 IMPORTANT GROUPS OF TREATIES
made a reservation in signing. Twenty-three States have
ratified. Liberia acceded in 1914.
VIII. Convention relative to the Laying of Automatic Sub-
marine Contact Mines. — The majority of the States represented
at the Conference signed. China, Spain, Montenegro, Nicaragua,
Portugal, Russia, and Sweden have not signed, but Nicaragua
and China acceded later. Some States made reservations.
Twenty States have ratified, with or without reservations.
Liberia acceded in 1914.
IX. Convention respecting Bombardments by Naval Forces in
Time of War. — Except China, Spain, and Nicaragua, aU the States
represented at the Conference signed, and China, Spain, and
Nicaragua acceded later. Some States made reservations.
Twenty-five States have ratified, with or without reservations.
Liberia acceded in 1914.
X. Convention for the Adaptation of the Principles of the Geneva
Convention to Maritime Warfare. — AU the Powers represented
at the Conference signed except Nicaragua, but some made
reservations. Nicaragua acceded later. At least twenty-four
States have ratified, with or without reservations.
XI. GonverUion relative to certain Restrictions on the Exercise
of the Bight of Ga/pture in Maritime War. — All States represented
at the Conference signed, except Chiua, Montenegro, Nicaragua,
and Russia, and Nicaragua and China acceded later. Twenty-
three States have ratified. Liberia acceded in 1914.
XII. Convention relative to the Establishment of an IntematiorMl
Prize Court. — The majority of the States represented at the Con-
ference signed. Brazil, China, San Domingo, Greece, Luxem-
burg, Montenegro, Nicaragua, Roumania, Russia, Serbia, and
Venezuela have not signed, and some of the smaller signatory
Powers made a reservation with regard to the composition of
the Court according to Article 15 of the convention. No State
has, however, ratified this convention.
XIII. Convention respecting the Rights and Duties of Neutral
Powers in Naval War. — ^AU the States represented at the Con-
ference signed except the United States of America, China, Cuba,
Spain, and Nicaragua. Some States made reservations. But
the United States of America, China, and Nicaragua acceded
later. At least twenty States have ratified, with or without
reservations. Liberia acceded in 1914.
XrV. Declaration prohibiting the Discharge of Projectiles and
Explosives from Balloons. — Only twenty-seven of the forty-four
IMPORTANT LAW-MAKING TREATIES 715
States represented at the Conference signed. Germany, Chili,
Denmark, Spain, France, Guatemala, Italy, Japan, Mexico,
Montenegro, Nicaragua, Paraguay, Roumania, Russia, Serbia,
Sweden, and Venezuela refused to sign, but Nicaragua acceded
later. Liberia has acceded also. Fifteen States have ratified.
5686.^ Important law-making stipulations are con- Theinter-
tained in the treaties of peace which were concluded ^*'oon-
at the close of the World War ; but these treaties form vention.
the subject of a separate part of this chapter. The
International Air Convention, however, which was
drawn up during the Peace Conference at Paris in 1919,
is a pure law-making treaty. It was signed on October
13, 1919, by the British Empire, France, Italy, Belgium,
Bohvia, Brazil, China, Cuba, Ecuador, Panama, Poland,
Portugal, Eoumania, Siam, and Uruguay, for the
purpose of regulating air navigation in time of peace.
Its principal clauses have already been considered.^
It has not yet been ratified.
568c. Another law-making treaty drawn up at the The Arms
Peace Conference at Paris in 1919 was the Convention conven-
f or the Control of the Trade in Arms and Ammunition, *i°"-
which was signed at St. Germain on September 10, 1919,^
by the United States of America, Belgium, Bohvia, the
' The Declaration of London of (1910) ; Baty, Britain and Sea Law
February 26, 1909, concerning the (1911) ; Bentwioh, The Declaration
Laws of Naval War, which was of London (1911); Bray, British
signed by all the ten Powers repre- Bights at Sea (1911); Bate, An
sented at the Conference of London — Elementary Account of the Dedara-
namely, Great Britain, Germany, the tion of London (1911) ; Civis, Cargoes
United States of America, Austria- cmd Cruisers (1911); Holland, Pro-
Hungary, Spain, France, Italy, posed Changes in Naval Prize Law
Japan, Holland, and Russia — was (1911) ; Cohen, The Declaration of
intended to be a law-making treaty London (1911). See also Baty and
of the greatest importance, and Macdonell in the Twenty-sixth
appeared as § 5686 in the last edition Report (1911) of the International
of this book. But it failed to secure Law Association, pp. 89, 115 ; Scott
ratification; and its fortunes during in A.J., viii. (1914), pp. 274-329,
the World War are traced in vol. ii. 520-564 ; Westlake, Papers, pp.
On account of the opposition to its 633-675. There are also innumer-
ratification which arose in England, able articles in periodicals,
the English literature on the de- . j, i, o ten
claration is very great. The more See above, § 197c.
important books are the following : ' Treaty Ser. (1919), No. 12,
Bowles, Sea Law amd Sea Power Cmd. 414.
716 IMPORTANT GROUPS OF TREATIES
British Empire, China, Cuba, Ecuador, France, Greece,
Gruatemala, Haiti, the Hedjaz, Italy, Japan, Nicaragua,
Panama, Peru, Poland, Portugal, Roumania, the Serb-
Croat-Slovene State, Siam, and Czecho-Slovakia. This
convention abrogated aU the provisions of former
general treaties deaUng with the trade in arms, and iu
particular the stipulations of the Brussels Act of July 2,
1890, dealing with this matter, in so far as they were
binding between the Powers which are parties to the new
convention. The signatory Powers, recognising that the
dispersal of the stocks of arms and ammunition which
were accumulated during the World War would con-
stitute a danger to peace and pubUc order, and that
the existing treaties dealing with the arms traffic in
certain regions no longer met present conditions, and
should be extended to a wider area, agreed to this
convention, which is to be revised at the end of seven
years, if the Council of the League of Nations, acting
by a majority, so recommends. The High Contracting
Parties undertake to prohibit altogether the export
of the arms and munitions of war specified in Article 1,
except imder Kcence ; and such hcences are only to be
granted to meet the requirements of Grovemments.
Arms the use of which is prohibited by International
Law are not to be exported under any circumstances.
Firearms and ammunition which do not fall within the
classes enumerated in Article 1 are not to be exported,
except under Kcence, to any part of the African con-
tinent (except Algeria, Libya, and South Africa), or to
Transcaucasia, Persia, Gwadar, the Arabian Peninsula,
and such continental parts of Asia as were part of the
Turkish Empire before the World War, or to a maritime
zone, including the Red Sea, the Gulf of Aden, the
Persian Gulf, and the Sea of Oman. Elaborate pro-
visions are laid down for the control and supervision of
the trade in arms and ammunition within these pro-
TREATIES OF PEACE AFTER THE WORLD WAR 717
hibited areas both by land and sea. A central inter-
national office, placed under the control of the League
of Nations, is to be estabhshed, to coUect documents
relating to arms traffic.^ Each party to the conven-
tion is to publish an annual report showing the mmiber
of export Ucences granted, and to send to the central
office, and to the Secretary-General of the League, full
information as to the quantities and destination of all
arms and ammunition exported without Ucence. Other
States which are members of the League are invited to
accede to the convention ; disputes arising under it,
which cannot be settled by negotiation, are to be sub-
mitted to arbitration in conformity with the Covenant
of the League. Germany,^ Austria,^ and Bulgaria *
are bound to accept these arrangements, and Hungary
and Turkey will probably be placed under a similar
obhgation, by the Treaties of Peace.
II
THE TREATIES OF PEACE AFTER THE WORLD WAR
§ 5Q8d. The resettlement of the world after the war The Re-
is not yet complete ; but it is possible to give a short ment after
account of the treaties already concluded. ^ World
In the diplomatic correspondence before the armistice
with Germany, general principles had been laid down for
the restoration of peace; the main task of the Peace
Conference at Paris was to apply them in detail. Victory
had enabled the Allied and Associated Powers to deal
separately with their enemies, and to exclude them
from the negotiations ; yet so many rival interests were
at stake that conflict followed by compromise was
inevitable. AJl the treaties are marked by compro-
• See above, § 471d. ' Article 373.
' Article 126. * Article 290.
718 IMPORTANT GR0X7PS OP TREATIES
mises, and by questions left over for future compromise,
or for settlement by the League of Nations.
These treaties fall into four groups : (1) Treaties of
Peace already concluded with Germany, Austria, and
Bulgaria, and stiU under consideration for Hungary
and Turkey when this volume went to press; (2)
Treaties between the Principal AUied and Associated
Powers and smaller AUied Powers, providing for the
protection of minorities, equitable treatment of com-
merce, and other matters. Treaties of this kind have
already been made with Poland, Czecho-Slovakia, the
Serb-Croat-Slovene State, and Roumania ; (3) Treaties
embodying local arrangements and made by the Principal
AUied and Associated Powers, or at their suggestion.
An example is the convention between Greece and
Bulgaria, signed at Neuilly on November 27, 1919,
respecting reciprocal emigration ; ^ (4) General treaties
not part of the settlement with the Central Powers.
These — the convention revising the Berlin and Brussels
Acts, and the Liquor Traffic, Arms Trade, and Air
Conventions — have already been discussed.^
The 568e. Of these treaties the first and most important
Peace^ °^ is the Treaty of Peace with Germany, which was signed
p*^ on June 28, 1919, at Versailles by the British Empire,
' the United States of America, France, Italy, Japan
(the Principal AUied and Associated Powers), Belgium,
BoHvia, Brazil, Cuba, Ecuador, Greece, Guatemala,
Haiti, the Hedjaz, Honduras, Liberia, Nicaragua,
Panama, Peru, Poland, Portugal, Roiimania, the Serb-
Croat-Slovene State, Siam, Czecho-Slovakia, Uruguay
(constituting with the Principal Powers mentioned
above the AUied and Associated Powers), and Germany.^
' Misc., No. 3 (1920), Cmd. 589. larged edition has been issued. A
This group cannot be discussed here. cheaper edition has been published
- See above, §§ 564, 566, 5686, unofficially (Henry Frowde and
668c, 197c. Hodder and Stoughton). China was
' Treaty Ser. (1919), No. 4, Cmd. named as a party to the treaty, but
153 ; now out of print, but an en- did not sign.
TEEATIBS OF PEACE APTBB THE WOELD WAR 719
It came into force on January 10, 1920, between Germany,
the Principal Allied and Associated Powers, excepting
the United States, and a number of smaller Allied *
Powers, through the drawing-up of a ' proems- verbal ' ^
recording the deposit of ratifications by these States.
The Treaty of Peace with Germany is divided into
fifteen parts. Part i, the Covenant of the League of
Nations, is the foundation of the treaty.^ Part ii
draws the new frontiers of Germany. Part m regulates
political questions between Germany and her neighbours.
Germany consents to the abrogation of the treaties of
April 19, 1839, which established the former status of
Belgium, agrees to accede to new arrangements to be
made by the Principal AlUed and Associated Powers
in concert with Belgium and Holland,^ recognises the
full sovereignty of Belgium over the contested territory
of Moresnet,^ and cedes to her Prussian Moresnet west
of the road from Li&gfe to Aix-la-Chapelle, and (subject,
however, to a plebiscite and the ultimate decision of
the League of Nations) Eupen and Malmedy. Germany
adheres to the termination of the neutrahty of Luxem-
burg, and accepts the arrangements which may be made
by the Allied and Associated Powers.^ Germany is
forbidden to fortify the Left Bank of the Rhine, and also
a zone on the Right Bank.^ Germany renounces the
government of the Soar Basin to the League of Nations
as trustee. The League is to govern through a com-
mission of five, which is to have most of the powers and
duties of a sovereign, including the protection of the
' When the ratifications of a promotion of international oo-opera-
treaty are deposited or exchanged, tion, the League has important and
a 'protocol' or ' proems- verbal,' re- delicate duties to perform in the
cording the ceremony, is generally execution of the Treaties of Peace,
drawn up and signed. As to pro- ' See above, § 99.
tocols, see above, § 491. * See above, § 171 (1).
' See above, §§ 167ci-«. As is ° See above, § 100.
there pointed out, in addition to its ' See above, § 205, n. 3. See
functions in the peaceful settlement also the Defence of France Treaties,
of international disputes and the § 569Z>.
720 IMPORTANT GROUPS OP TREATIES
inhabitants abroad. But their existing nationality
is unaffected. There are to be no fortifications, and
no miUtary service. The coal-mines within the Basin
Germany cedes absolutely to France. At the end of
fifteen years, after a plebiscite, the League of Nations
is to determine whether the whole or a part of the Basin
should be united with France, or with Germany, or
maintained permanently under the treaty regime.
Germany is to repurchase the coal-mines in any part
of the Basin then reunited with her. Alsace-Lorraine
is restored to French sovereignty as from the armistice.
Germany acknowledges the independence of Austria,
and agrees that it shall be inaUenable, except with the
consent of the Council of the League of Nations.
Germany recognises the independence of Czecho-Slovahia,
a new State consisting of Bohemia, Moravia, part of
Silesia, Slovakia, and the autonomous territory of the
Euthenians, and cedes to it a portion of Silesian
territory.^ Germany also recognises the independence
of restored ^ Poland, and cedes to it West Prussia and
Posnania. In Upper Silesia, and in Allenstein and
certain other parts of East Prussia, a plebiscite is to
be held, and the Principal Alhed and Associated Powers
will then decide between the claims of Germany and
Poland. There is to be freedom of transit across
Poland between East Prussia and the rest of Germany.^
Germany renounces Memel, of which no disposition is
made. Danzig is to be estabhshed as a Free City, under
the protection of the League of Nations ; but its foreign
relations, many of its pubhc services, and the diplo-
matic protection of its citizens abroad are to be in the
hands of Poland.* A new frontier is to be fixed between
Denmark and Germany in Schleswig, having regard
' Not to be confounded with Prussia severs East Prussia from
Upper Silesia. the rest of Germany.
' See above, § 45.
» The Polish corridor of West * See above, § 93.
TREATIES OF PEACE AFTER THE WORLD WAR 721
to the wishes of the population.^ The fortifications
of HdigdUmA and Dune are to be destroyed, and not to
be reconstructed. Grermany may not instal guns to
command the sea passages between the North Sea and
the* Baltic. Grermany agrees to the inahenable inde-
pendence of all the territories of the former Russian
Ern/pire, accepts the abrogation of the Treaties of
Brest Litovsk,^ and of all her other treaties with the
so-called Bolshevik Government, and agrees to any
arrangements which the Allied and Associated Powers
may make for any of these territories.
By Part iv Grermany renounces all territorial rights
outside her new European frontiers, and accepts the
measures which may be taken by the Principal Allied
and Associated Powers. In particular, she renounces
her oversea possessions, which are, for the most part,
to be administered by an Alhed Power as mandatory
on behalf of the League of Nations,^ renounces all rights
under two conventions with France * relating to Equa-
torial Africa, and will observe the conventions made by
any Allied Powers with regard to the trade in arms and
spirits, and to revise the BerUn and Brussels Acts.^
The leases of the German concessions at Hankow
and Tientsin are abrogated ; * and German rights in
Shantung are renounced in favour of Japan, which
has offered to negotiate with China for retrocession.'
Grermany recognises the abrogation of all her pre-war
treaties with Siam and Liberia, and renounces all
benefits under the Algeciras Act of April 7, 1906, and
other treaties relating to Morocco,^ and under the regime
' See above, § 289, and Cakes and ' See above, g 167y.
Mowat, The GfrecU European Treaties ' Signed on November 4, 1911,
of the Nineteenth Century (1918), and September 28, 1912.
pp. 186 and 247, for previous episodes ' See above, §§ 564, 566, 568c.
in the Sohleswig question. That " See above, § 171 (3).
book answers many historical ques- ' See above, § 171 (3), and The
Mons raised by the Treaties of Peace. Times, January 26 and 29, 1920.
* See above, § 50a. ' See above, § 50.
VOL. 1. 2Z
722 IMPORTANT GROUPS OF TREATIES
of the Capitulations,^ She recognises the British pro-
tectorate over Egypt,^ the abrogation of all her treaties
with Egypt, and of the Capitulations.^ She consents to
the transfer to Great Britain of the powers of the Sultan
under the Suez Canal Convention.* She abandons
all claims to rights or interests in Turkey and Bulgaria.
Part V contains the miUtary, naval, and air clauses.
In order to render possible a general limitation of
armaments, the German army is to be reduced to
100,000 men, not recruited by compulsory service.
The German navy is to be reduced to six battleships
and a corresponding number of other war-vessels,
and the construction or acquisition of any submarine,
even for commercial purposes, is forbidden. The
armed forces of Germany may not include any military
or naval air forces. Germany may not accredit military,
naval, or air missions to any foreign country. Those
restrictions under this Part, for the execution of which a
time-limit is prescribed, are to be carried out under the
control of Inter- Allied commissions ; and as to the
others, so long as the treaty remains in force, Germany
undertakes to give every facihty for any investigation
which a majority of the Council of the League of Nations
may consider necessary.
Part VI provides for the repatriation of prisoners of
war,^ and the maintenance of graves,
Under Part vii the AUied and Associated Powers
publicly arraign the former German Emperor for a
supreme offence against international morality and
the sanctity of treaties ; and the German Government
recognises their right to bring to trial persons accused
of having committed acts in violation of the laws and
customs of war.^
' See above, 5§ 318, 418, 439. * See above, § 183.
' See above, § 91. ' See vol. ii. § 132.
' See above, § 441. ' See vol. ii. § 251-257.
TREATIES OP PEACE AFTER THE WORLD WAR 723
Under Part viii Germany accepts responsibility for
herself and her AlUes for all the loss and damage
which the Allied and Associated Governments and their
subjects suffered in consequence of the war imposed
upon them ; but they recognise that the resources of
Germany are not adequate to make complete reparation.
So categories of damage are specified, for which repara-
tion is to be made, and machinery is provided to assess
the amount payable (the Eeparation Commission),
and to determine whether this amount is to be paid
in cash, raw materials, services, or otherwise, and how
much is to be credited to Germany for transfers of
property under the treaty.
Part IX estabhshes the priority of the various charges
on the assets and revenues of Germany, stipulates the
currency for payment, provides for the apportionment
of the German pre-war public debt between Germany
and the States to which German territory is ceded,^ and
for payment for the public property acquired by them,
and contains articles to ehminate German influence
over international financial or economic organisations,
and pubHc services, in certain foreign countries.
Part X contains clauses of limited duration prohibit-
ing Germany from giving preference to the commerce
of any other foreign State in import or export duties,
or by any other means, to the disadvantage of the Allied
and Associated Powers. Their vessels are to enjoy
most -favoured -nation treatment ^ in German terri-
torial waters as regards sea fishing, coasting trade, and
towage. Their subjects are not to suffer any restrictions
in Germany not equally applicable to all aliens, nor any
restrictions first imposed since July 1914 which are
not also imposed upon German^s. There are also pro-
visions for the prevention of unfair competition, for
* See above, § 84. favoured-nation treatment, Bee below,
' As to the meaning of most- § 580.
724 DfPOBTAifT GEOUPS OF TBEATIES
free access to the Grerman courts, and for the appoint-
ment of consuls by the Allied and Associated Powers.^
The multilateial treaties of an economic or technical
character which are to be again applied between
Germany and those of the Allied and Associated Powers
party thereto are enumerated,"^ and there are stipula-
tions as to the abrogation or redintegration of bilateral
treaties.^ Detailed arrangements are made for the re-
adjustment of private property, rights and interests
between Gierman subjects or firms and those of Alhed
or Associated Powers.
Part XI contains articles of limited duration with
r^ard to aerial navigation.*
Part xn provides for freedom of transit throng
German territory, either by rail, navigable waterway, or
canal, to persons, goods, vessels, carriages, wagons, and
mails coming from, or going to. Allied and Associated
States. No discriminatory or preferential chaiges are
to be imposed. The subjects of Allied and Associated
States, their vessels and property, are to enjoy in the
ports, and on the inland routes, of Gfermany the same
treatment as German subjects, their vessels and pro-
perty. The free zones p.-gistiTig m German ports before
the war are to be maintained under a special r^me
provided by the treaty. On Cierman railways goods
coming from AUied and Associated States and going
to Germany, and goods in transit through Germany,
are to enjoy the most favourable treatment appUed to
goods of the same kind on any German lines. These
stipulations are to be subject to revision by the Council
of the League of Xations after January 1925 ; but failing
such revision, no AUied or Associated State can claim
the benefit of them after that date without according
' Aa to oonsuls, see abore, ^ 418- * Germany may not at present
438. acoede to the International Air Con-
' See below, § 5816. Tentaon, § 197c.
> See ^ 549. 552, and toL iL § 99.
TREATIES OF PEACE AFTER THE WORLD WAR 725
reciprocity.! Without prejudice to these special pro-
visions, Germany agrees to accede to any international
conventions regarding transit, waterways, ports, or
railways, which may be concluded by the Alhed and
Associated Powers, with the approval of the League of
Nations, before January 1925. This Part also pro-
vides a regime for the Kiel Canal ^ and for international
rivers,^ and special clauses for the Elbe, Oder, Niemen,
Dailube, Rhine, and MoseUe.* Moreover, Germany is
to lease to the Czecho-Slovak State for ninety-nine
years free zones in the ports of Hamburg and Stettin.^
Part xm is the International Labour Convention.®
Under Part xiv, as a guarantee for the execution of
the treaty, the German territory to the west of the
Rhine, together with the bridgeheads, wiU be occupied
by Alhed and Associated troops for fifteen years ; but
if the treaty is faithfully carried out, the occupied area
will be gradually restricted.
Part XV deals with miscellaneous questions, such as
the neutrahsed zone of Savoy,' the relationship between
France and Monaco,^ and Prize Court decisions.^
568/. The Treaty of Peace with Austria was signed The
on September 10, 1919, at St. Germain, by the British l^aof °^
Empire, the United States of America, France, Italy, Y^*^ .
and Japan, by Belgium, China, Cuba, Greece, Nicaragua,
Panama, Poland, Portugal, Siam, and Czecho-Slovalda,
and by Austria.^" It has not yet ^^ come into force. This
treaty is in form similar to the German treaty, and
many of its clauses are identical.
' But the period during which ' See above, § 207.
reciprocity cannot be demanded may » See above, § 93.
be prolonged by the Council of the » ggg ^gj jj g J92.
^f:. above, § 183a. ^ ", '^I^^'^ J"'' ''^'^>' A°\ ,'''
' See above, §§ 178, 459. Cmd. 400 Roumama acceded later.
' See above, §§ 178, 459. ^he Serb-Croat-Slovene State ao-
' As to leases of territory, see Sf^ed on Deoember 5 1919 (See
above, § 171 (3). Treaty Ser. (1920), No. 8, Cmd. 638.)
« Ksoussed below, § 568i. " May 1920.
726 IMPORTANT GROUPS OF TREATIES
Part I is the Covenant of the League. Part n draws
the frontiers of Austria, which embrace the pre-
dominantly Gterman-speaking territories of the old
Austria-Hungary. Part in provides for readjustments
with Italy, for Austrian recognition of the new Serb-
Croat-Slovene State, and of Czecho-Slovakia, for a
plebiscite in the Klagenfurt area, and the renunciation
in favour of Roumania of such part of Bukovina
as is assigned to her. It also contains provisions
analogous to those in the German treaty relating to
Belgium, Luxemburg, Schleswig, Turkey, Bulgaria,
Russia, and the Russian States. Part iv deals
with Austrian interests outside Europe — ^in Morocco,
Egypt, ^ Siam, China. Part v restricts the Austrian
army to 30,000 men, and the navy to three river
patrol boats. No military or naval aircraft are
permitted. There are provisions with regard to sub-
marines, missions. Inter- AUied commissions of control,
and investigations by the Council of the League. Part
VI deals with prisoners of war ^ and the maintenance
of graves. Part vn deals with the punishment of war
crimes.' Part vm contains the reparation clauses ;
Part IX the clauses determining the priority of charges
established by the treaty, the apportionment of the pubUc
debt of old Austria-Hungary, and the liquidation of the
Austro-Hungarian Bank. Part x prohibits commercial
discrimination, unfair competition, and victimisation of
subjects of the AUied and Associated Powers ; and
deals with consuls, treaties,* and the readjustment of
private rights. Part xi deals with air navigation.
Part xn provides for freedom of transit, freedom of
navigation on inland waterways, free access for Austria
to the Adriatic, and freedom of navigation on the river
1 See above, 91, 183, 441. • See below, § 5816, and vol. ii.
" See vol. u. § 132. § 99.
' See vol. u. §§ 251-257.
TREATIES OF PEACE AFTER THE WORLD WAR 727
system of the Danube.^ It also contains stipulations
concerning railways, telegraphs, and telephones. Part
XIII is the Labour Convention ; ^ and Part xiv contains
miscellaneous provisions.
568g. The Treaty of Peace with Bulgaria was signed The
on November 27, 1919, at NeuiUy, by the Principal peaoe^ °
AlHed and Associated Powers, Belgium, China, Cuba, ^^ga^ia
Greece, the Hedjaz, Poland, Portugal, the Serb-Croat-
Slovene State, Siam, Czecho-Slovakia, and Bulgaria.^
Roumania acceded later. It has not yet (May 1920)
come into force.
Part I is the Covenant of the League ; Part ii draws
the frontiers. Part iii readjusts the relations of
Bulgaria with the Serb-Croat-Slovene State and Greece,
provides for the renunciation of parts of Thrace at
that time unallocated, and for an economic outlet for
Bulgaria to the ^Egean. It also contains articles by
which Bulgaria concurs in the general resettlement.
Part IV restricts the Bulgarian army to 20,000 men,
and the navy to ten small craft, Bulgaria is to
keep no mihtary or naval air forces. Part v deals
with prisoners of war * and graves ; Part vi with the
punishment of war crimes ; ^ Part vii with reparation ;
Part vin with the priority of charges and the apportion-
ment of public debt ; Part ix with commercial relations,
treaties,® consular jurisdiction,' and private rights ;
Part X with air navigation ; Part xi with freedom of
transit, of navigation on inland waterways and in ports
and on the Danube,^ telegraphs and telephones, and
transport by rail. Part xii is the Labour Convention,^
and Part xiii contains miscellaneous provisions.
568A. The treaties between the Principal AlHed and
1 See above, §g 178, 459. « See below, § 5816, and vol. ii.
^ See below, § 568i. § 99.
' Treaty Ser. (1920), No. 5, Cmd. 7 gee above, §§ 318, 439.
^^'See vol. ii. § 132. ° See above, §§ 178, 459.
' See vol. ii. §§ 251-257. ° See below, § 568j.
728 IMPORTANT GROUPS OF TREATIES
Treaties Associated Poweis and Poland, Czecho-Slovakia, the
Smaller Seib-Croat-Slovene State, and Roumania respectively,^
p^were ^^^^ ^^^ ^^^^ questions as the equitable treatment of
and the foreign commerce, consuls, customs duties, freedom
tionof of transit, freedom of navigation on the Vistula and
itira?"^ the Pruth, and accession to general treaties. But it
is only possible to discuss here the important clauses
relating to the protection of minorities.
As has already been stated,^ when, at the Berhn
Congress in 1878, the Great Powers accorded recogni-
tion to Montenegro, Serbia, and Roumania, they made
it a condition that these States should comply with
certain principles of government. But recognition
once given, is incapable of withdrawal ; and therefore
the legal effect of conditional recognition is merely to
impose upon the State accepting it a duty to fulfil the
condition. At the end of the World War the principal
victorious Powers sought the same result by the more
direct means of concluding a series of treaties with the
States concerned ; and provisions for the protection
of minorities occur in the treaties with Poland, Czecho-
slovakia, the Serb-Croat-Slovene State, Roumania,
Austria and Bulgaria, and probably in the treaties still
under consideration.
Under these clauses all inhabitants are to enjoy full
and complete protection of hfe and liberty, without
distinction of birth, nationaUty, language, race or
religion, and shall be entitled to the free exercise of
any religion. Provision is made that citizenship shall
' The treaty with Poland was the Austrian treaty. See Treaty Ser.
signed on June 28, 1919, and came (1919), Nos. 20 and 17, Cmd. 479
into force on January 10, 1920. See and 461. The treaty with Roumania
Treaty Ser. (1919), No. 8, Cmd. 223. was signed on December 9, 1919, and
The treaties with Czeoho - Slovakia is also to come into force at the same
and the Serb-Croat-Slovene State time as the Austrian treaty. See
were signed on September 10, 1919, Treaty Ser. (1920), No. 6, Cmd. 588.
by all the parties except the Serb- These last three treaties have not
Croat-Slovene State, which acceded yet been ratified,
on December 5, 1919, and are to
come into force at the same time as ' See above, § 73.
TREATIES OF PEACE AFTER THE WORLD WAR 729
not be denied to genuine residents of whatever minority,
and by this means it is hoped to avoid a repetition of
the tactics adopted to evade the Treaty of Berhn.^ All
citizens are to enjoy equality before the law, the same
civil and poKtical rights, the right to use any language
in pubhc or in private, and the right to establish schools
and rehgious and charitable institutions. All these
stipulations constitute obKgations of international con-
cern under the guarantee of the League of Nations.
They can only be modified byn majority of the Council,
and disputes arising out of them shall, upon the applica-
tion of an aggrieved party, be submitted to the Per-
manent Court of International Justice.^ Any member
of the Council of the League is authorised to call
attention to any infraction, and thereupon the Council
may take such steps as it thinks fit.
These treaties also contain clauses for the benefit
of particular minorities. Thus the Polish and Rou-
manian treaties contain special stipulations in favour
of the Jews.
568i. Article 23(a) of the Covenant of the League of The inter-
Nations provides that the member-States shall estab- Lat°^
hsh and maintain organisations to secure fair and Conven-
humane conditions of labour.^ This obligation has
been carried out by the Labour Part of the Treaties of
Peace, which estabhshes a Permanent Labour Organisa-
tion, consisting of a General Conference and of an
International Labour Office, controlled by a governing
body, and conducted by a director.
All States which are, or may become, members of
the League of Nations are members of the International
Labour Organisation, and each selects four, delegates
(two being Government delegates, the third represent-
ing the employers, and the fourth the workpeople)
^ See above, § 312. ' See above, §§ 167A and 167?.
^ See above, 4766.
730 IMPORTANT GROUPS OF TREATIES
to attend the General Conference, which meets at least
once a year.
The main function of a General Conference is
to draw up recommendations to be submitted to the
member-States for consideration, with a view to effect
being given to them by national legislation or other-
wise, and draft conventions which must be submitted
to the member-States for ratification. It will be seen,
therefore, that the Conference has no legislative powers.
Every recommendation or draft convention which is
adopted by a two-thirds majority on the final vote is
to be coBomunicated to each member-State by the
Secretary-General of the League of Nations. There-
upon, each member-State undertakes to bring it before
the authorities competent to take the requisite action ;
and if it is a recommendation, it will inform the
Secretary-General what action has been taken ; if it
is a draft convention, and it secures ratification, it will
communicate the formal ratification to the Secretary-
General for registration, and will give efiect to its pro-
visions. If any member-State fails to fulfil these
obhgations, any other member-State may bring the
matter before the Permanent Court of International
Justice, whose decision shall be final. But if no action
is taken by the competent authorities on a recommenda-
tion, or if a convention fails to secure ratification, the
obhgations of the member-State concerned are at an
end. Conventions are only binding on States which
ratify them.^
The International Labour Office, estabhshed at the
seat of the League of Nations as part of its organisa-
tion, is under the control of a governing body of
twenty-four persons. Twelve are nominated by Govern-
' As to the provisions with regard not fully self-governing, see, for ex-
to Federal States, and colonies, pro- ample, the Treaty of Peace with
teotorates and possessions which are Germany, Articles 405 and 421.
TEEATIE8 OF PEACE AFTER THE WORLD WAR 731
ments ; six are elected by the delegates at the Con-
ference representing employers ; and six by those
representing workers. The governing body elects its
own chairman, regulates its own procedure, and fixes
its meetings.
It also appoints a director, who, subject to its in-
structions, is responsible for the efficient conduct of
the Labour Office.
The principal functions of the Labour Office, in
addition to those assigned to it by the Conference, are :
(1) The collection and distribution of information
relating to industrial hfe and labour.
(2) The examination of subjects proposed for dis-
cussion by the Conference.
(3) The pubHcation of a periodical paper.
(4) The receipt of annual reports from the member-
States on the measures taken tg give effect to the
conventions to which they are party.
(5) Duties in connection with complaints.
Two kinds of complaints are dealt with by the Con-
vention, namely (a) complaints against a member-
State by an industrial association of employers or
workers, and (6) complaints by one member-State
against another.
(a) If an industrial association lodges a complaint
with the Labour Office that a member-State has failed
to secure the effective observance of any convention
to which it is a party, the governing body may com-
municate it to the Government of the member-State
concerned, and invite a statement in reply. If ho reply
is made, or if the reply appears to the governing body
to be unsatisfactory, it may pubhsh the complaint,
together with the reply, if any.
(6) If, on the other hand, one member-State lodges
a complaint with the Labour Office that another member-
State is not securing effective observance of a conven-
732 IMPORTANT GROUPS OF TREATIES
tion which both have ratified,^ the governing body, with
or without previous communication with the member-
State affected by the complaint, may apply to the
Secretary-General of the League to nominate a C!om-
mission of Inquiry, constituted in accordance with the
Labour Convention.
The Commission of Inquiry is to prepare a report,
embodying its findings and recommendations. This
report is to be published, and the member-State affected
by it can either accept the recommendations, or appeal
to the Permanent Court of International Justice,^ whose
decision shall be final. If any member-State neither
appeals, nor carries out the recommendations of the
Commission, or, after appeal, fails to carry out the
decision of the Court, any other member-State may
take against it the economic measures indicated in the
report or the decision, as the case may be ; and may
continue to apply them until a Commission of Inquiry,
constituted as before, finds that the defaulting State
has taken the necessary steps.
Disputes arising out of this Convention, or any con-
vention concluded imder it, are to be referred to the
Permanent Court of International Justice.
The first meeting of the General Conference was held at
Washington from October 29 to November 29, 1919,^ and
six draft conventions, concerning (1) the hours of work
in industrial undertakings, (2) unemployment, (3) the
employment of women before and after childbirth, (4)
the employment of women during the night, (5) the
minimum age for admission of children to industrial
employment, and (6) the night work of young persons ;
and six recommendations, concerning (1) unemploy-
ment, (2) foreign workers, (3) anthrax, (4) the protection
^ Or if a delegate to the Conference desires an investigation,
lodges such a complaint, or if the ' See above, § 4766.
goTeming body, of its own motion, ' See Pari. Paper, Omd. 627.
ALLIANCES 733
of women and children against lead-poisoning, (5)
Government Health Services, and (6) the Berne White
Phosphorus Convention of 1906,^ were adopted. The
States selected to nominate Government representa-
tives on the governing body were : Belgimn, France,
Great Britain, Italy, Japan, Germany, Switzerland,
Spain, Argentina, Canada, Poland, and, pending the
advent of the United States, Denmark.^
Ill
ALLLA.NCES
Grotius, ii. o. 15— Vattel, iii. §§ 78-102— Twiss, i. § 246— Taylor, §§ 347-349
— Wheaton, §§ 278-285— Bluntsohli, §§ 446-449— Heffter, § 92— Geffcken
in ffoUzendorff, iii. pp. 115-139— Ullmann, § 82— Bouflls, Nos. 871-881
— Despagnet, No. 459 — M6rignhao, ii. p. 683 — Nys, iii. pp. 531-534 —
Pradier-Fod6r6, ii. Nos. 934-967— Rivier, ii. pp. 111-116— Calvo, iii.
§§ 1587-1588— Fiore, ii. No. 1094, and Code, Nos. 898-904— Martens, i.
§ 113— Rolin-Jaequemyns in B.I., xx. (1888), pp. 5-35— Erich, Ueber
AUianzen wnd AUiamverhdZtnisie nach heMigem Volkerrecht (1907) —
Lammasch, Das Volkerrecht nach dem Kriegt (1917), pp. 159-171 —
Rehm in Z.I., xxvi. (1915), pp. 118-152
§ 569. AlHances, in the strict sense of the term, are Concep-
treaties of union between two or more States, for the Amanoe*.
purpose of defending each other against an attack in
war, or of jointly attacking third States, or for both
purposes. The term ' alliance ' is, however, often made
use of in a wider sense, and it comprises in such cases
treaties of union for various purposes. Thus, the
so-called ' Holy Alliance,' concluded in 1815 between
the Emperors of Austria and Eussia and the King of
Prussia, and afterwards joined by almost all the sove-
• See below, § 587.
» See The Times, November 27, 1919.
734 IMPORTANT GROUPS OP TREATIES
reigns of Europe, was a union for such vague purposes
that it cannot be called an alliance in the strict sense
of the term.
History relates innumerable alliances between the
several States. They have always played an impor-
tant part in poUtics. The triple aUiance ^ between
Germany, Austria, and Italy made in 1879 and 1882,
renewed in 1912, and denounced by Italy in 1915, the
alHance between Russia and France made in 1899, and
that made between Great Britain and Japan in 1902,
and renewed in 1905 and 1911, are illustrative examples.
Con- 5696. During the Peace Conference at Paris after
mfeaoeot the World War, on June 28, 1919, Great Britain signed
TrStfes. ^ treaty with France by which she undertook, subject
to the consent of ParHament, and provided that a
similar obligation was entered into by the United States
of America, to support France in the case of an unpro-
voked movement of aggression being made against
France by Germany. It was provided that the treaty
was to be submitted to the OouncU of the League of
Nations, and was to be recognised by the Council,
acting by a majority, as an engagement consistent with
the Covenant ; it was to continue in force until, on
apphcation of one of the parties, the Council, acting
by a majority, agreed that the League itseK afforded
sujBB.cient protection. It was to impose no obUgation
upon any of the British Dominions until approved by
the Parliament of the Dominion concerned. This
treaty was approved by the British Parliament and the
French Chambers, and was ratified on November 20,
1919. But it has not come into force, because the
treaty in similar terms entered into between the United
States of America and France on the same day has not
been ratified. The Anglo-French Defence of France
Treaty is contingent upon the Franco- American Treaty,
' See Singer, Oaichichle des Dreibundes {1914).
ALLIANCES 735
and will only come into force if, and when, the latter
is ratified.^
§ 570. Subjects of aUiances are said to be full sove- Parties to
reign States only. But the fact cannot be denied that ^•^'*"'^^-
aUiances have been concluded by States under suze-
rainty. Thus, the convention of April 16, 1877, between
Roumania, which was then under Turkish suzerainty,
and Russia, concerning the passage of Russian troops
through Roumanian territory in case of war with Turkey,
was practically a treaty of aUiance.^ Thus, further, the
former South African Republic, although, at any rate
according to the views of the British Gk)vernment, a
half sovereign State under British suzerainty, con-
cluded an alliance with the former Orange Free State
by treaty of March 17, 1897.3
A neutralised State can be the subject of an aUiance
for the purpose of defence, whereas the entrance into
an offensive aUiance on the part of such State would
involve a breach of its neutrality.
§ 571. As already mentioned, an alliance may be Different
offensive or defensive, or both. All three kinds may be AiUanc'L.
either general alliances, in which case the aUies are
united against any possible enemy whatever, or par-
ticular aUiances against one or more particular enemies.
AUiances, further, may be either permanent or tem-
porary ; in the latter case they expire with the period
of time for which they were concluded. As regards
ofEensive aUiances, it must be emphasised that they ■
are vaUd only when their object is not immoral,* and
* Treaty Ser. (1919), No. 6, Cmd. a new condition of affairs — it is oon-
^1. Of coarse, it may be that, if tingent upon the United States
the Franco-American Treaty is not Grovemment undertaking the same
ratified. Great Britain will enter obligation.' See The Times, Novem-
into anew Defence of France Treaty. ber 22, 1919.
Mr Bonar Law stated in «ie House z gee Martens, X.B.G., 2nd Ser.
of Uommons, on behalf of the British jjj - jg2
Government, on November 21, 1919 : j <, T.r »t ,, ^ « , „
•As far as any obUgation of this See Martens, N.R.G., 2nd Ser.
country is concerned — I do not say ^^^' P' '•
that another situation ■will not make ' See above, § 503.
736 IMPORTANT GROUPS OF TREATIES
all alliances which are inconsistent with the Covenant
of the League of Nations are if so facto abrogated, as
between members of the League, by Article 20 of the
Covenant. The members solemnly undertake that they
will not enter into any new engagements inconsistent
with the Covenant, and wiU take immediate steps to
procure their release from any such obligations already
assimied. However, international engagements for
securing the maintenance of peace are vahd.^
Condi- § 572. Subject, as between members of the League
Alliances, of Nations, to the provisions of the Covenant, aUiances
may contain all sorts of conditions. The most important
are the conditions regarding the assistance to be ren-
dered. ■ It may be that assistance is to be rendered
with the whole, or a limited part, of the military and
naval forces of the alhes, or with the whole, or a limited
part, of their mihtary forces only, or with the whole,
or a limited part, of their naval forces only. Assistance
may, further, be rendered in money only, so that one
-'^ of the allies is fighting with his forces, while the other
supphes a certain sum of money for their maintenance.
A treaty of aUiance of such a kind must not be con-
founded with a simple treaty of subsidy. If two States
enter into a convention that one of the parties shall
furnish the other permanently, in time of peace and
war, with a limited number of troops, in return for a
certain annual payment, such a convention is not an
alhance, but a treaty of subsidy only. But if two
States enter into a convention that, in case of war, one
of the parties shall furnish the other with a limited
mmiber of troops, be it in return for payment or not,
such a convention really constitutes an alhance. For
every convention concluded for the purpose of lending
succour in time of war imphes an aUiance. It is for
this reason that the above-mentioned ^ treaty of 1877
» Article 21. ' See above, § 570.
TREATIES OF GUARANTEE AND OF PROTECTION 737
between Russia and Roumania, concerning the passage
of Russian troops througli Roumanian territory in case
of war against Turkey, was really a treaty of alliance.
§ 573. Casus foederis is the event upon the occurrence Casus
of which it becomes the duty of one of the allies to '*^""'*-
render the promised assistance to the other. Thus, in
case of a defensive aUiance, the casus foederis occurs
when war is declared or commenced against one of the
allies. Treaties of aUiance very often define precisely
the event which shall be the casv^ foederis, and then the
latter is less exposed to controversy. But, on the other
hand, there have been many aUiances concluded without
such precise definition, and, consequently, disputes have
arisen later between the parties as to the casus foederis?-
That the casus foederis is not infiuenced by the fact
that a State, after having entered into an alhance, con-
cludes a treaty of general arbitration with a third State,
has been pointed out above, § 522.
IV
TREATIES OF GUARANTEE AND OP PROTECTION
Vattel, ii. §§ 235-239— Hall, § 113— PhilUmore, ii. §§ 56-63— Twiss, i. § 249
— HaUeok, i. p. 304— Taylor, §§ 350-353— Wheaton, § 278— BluntaohU,
§§ 430-439— Heffter, § 97— Geffoken in Holtzendorff, iii. pp. 85-112-
Liszt, § 22— Ullmann, § 83— Fiore, Code, Nos. 792-796— Bonfila, Nos.
882-893— Despagnet, No. 461— M6rignhao, ii. p. 681— Nys, ii. pp. 516-
520— Pradier-Fod6r6, ii. Nos. 969-1020— Rivier, ii. pp. 97-105— Calvo,
iii. §§ 1584-1585 — Martens, i. § 115 — Neyron, Essai historique et
politique sur let Garanties (1779) — Milovanovitoh, Des Traites de
Garaniie en Droit international (1888) — Erich, Ueber Allianzen und
AUianzverhdltnisae nach heutigem Volkerrecht (1907) — Quabbe, Die
volherrechtliche Oarantie (1911) — Grosoh, Der Zwang im Volkerrecht
(1912), pp. 66-75— Idman, Le TraiU de Oarantie (1913)— Sanger and
Norton, England's Guarantee to Belgium and I/useeniburg (1915) —
Lammasoh, Das Volkerrecht nach dem Kriege (1917), pp. 159-171 —
Erich in Z. V., vii. (1913), pp. 452-476.
^ Thus, during the World War, Greece refused to recognise that a
Italy declined to recognise that a ca^us foederis had occurred under the
casms foederis had occurred under Greco-Serbian Treaty of 1913 (see
the Triple AlUanoe (see A.J., viii. A.J., xii. (1918), p. 312).
(1914), Supplement, p. 368), and
VOL. L 3 A
738 IMPORTANT GROUPS OP TREATIES
Concep- § 574, Treaties of guarantee are conventions by
tion and ,.- ., . ii^-'-i
Objeots of wnicn one oi the parties engages to do what is m its
Treaties!^ P°^®^ to secure a certain object to the other party.
Guarantee treaties may be mutual or unilateral. They
may be concluded by two States only, or by a number
of States jointly. In the latter case, the single guarantors
may give their guarantee severally, or collectively, or
both. And the guarantee may be for a certain period
of time only, or permanent. Guarantee treaties are
admissible according to Article 21 of the Covenant of
the League of Nations, provided that they are not
inconsistent with its terms. Indeed Article 10 of the
Covenant itself constitutes a treaty of guarantee.
The possible objects of guarantee treaties are nume-
rous.^ It suffices to give the following chief examples :
the performance of a particular act on the part of a
certain State, as the discharge of a debt,^ or the cession
of a territory ; certain rights belonging to a State ;
the undisturbed possession of the whole, or a particular
part, of its territory ; a particular form of con-
stitution ; a certain status, as permanent neutrality,*
or independence,* or integrity ; ^ particular dynastic
' The important part that treaties * Thus Great Britain, France, and
of guarantee play in politics may be Russia guaranteed, by the treaty
seen from a glance at Great Britain's with Denmark of July 13, 1863, the
guarantee treaties. See Munro, Eng- independence (but also the monarchy)
land's Treaties of Gua/romtee, in the of Greece (Martens, N.R.O., xvii.
Law Magazine and Review, ■n.(\&i\), pt. ii. p. 79). The United States
pp. 215-238. of America has guaranteed the inde-
' It is important to state that the pendence of Cuba by the Treaty of
guarantee by one or more States Havana of May 22, 1903 (Martens,
of the discharge of a, debt concerns N.R.G., 2nd Ser. xxxii. p. 79); of
only a debt between two States, Panama by the Treaty of Washington
and not a debt of a State to private of November 18, 1903 (Martens,
individuals. Although the latter ^.jB.G., 2nd Ser. xxxi. p. 599) ; and
may likewise be guaranteed by one of Haiti by Article 14 of the Treaty
or more States, such a guarantee is of Port-au-Prince of September 16,
as little an international treaty as 1915 (see .4. J^.,x. (1916), Supplement,
the guaranteed loan itself is an p. 234).
obligation according to International ' Thus the integrity of Norway
Law. See Meyer-Balding in Z.I., was guaranteed by Great Britain,
xxvi. (1916), pp. 387-426, and the Germany, France, and Russia by the
literature there quoted. Treaty of Christiania of November 2,
» See above, § 95. 1907 (see Martens, N.B.O., 3rd Ser.
TREATIES OF GUARANTEE AND OP PROTECTION 739
succession ; the fulfilment of a treaty concluded by a
third State.
§ 575. The effect of guarantee treaties is the imposi- Effect of
tion of the duty upon the guarantors to do what is in J/^ar^.
their power in order to secure the guaranteed objects, a"*^^.
The compulsion to be applied by a guarantor for that
purpose depends upon the circumstances ; it may
eventually be war. But the duty of the guarantor to
render, even by compulsion, the promised assistance
to the guaranteed State depends upon many conditions
and circumstances. Thus, first, the guaranteed State
must request the guarantor to render assistance. When,
for instance, the possession of a certain part of its
territory is guaranteed to a State which, after its defeat
in a war with a third State, agrees, as a condition of
peace, to cede the territory in question to the victor
without having requested the intervention of the
guarantor, the latter has neither a right nor a duty to
interfere. Thus, secondly, the guarantor must at the
critical time be able to render the required assistance.
When, for instance, its hands are tied through waging
war against a third State, or when it is so weak through
internal troubles, or other factors, that its interference!
would expose it to a serious danger, it is not bound to
fulfil the request for assistance. So too, when the
guaranteed State has not compUed with previous advice
given by the guarantor as to the Hne of its behaviour, it
is not the guarantor's duty to render assistance after-
wards.
It is impossible to state all the circumstances and
conditions upon which the fulfilment of the duty of the
guarantor depends, as every case must be judged upon
its own merits. And it is certain that, more frequently
i. p. 14, and ii. p. 9), a condition of to any foreign Power. See Morgen-
this integrity being that Norway stierne in the Law Quwrterly Review,
did not cede any part of her territory xxxi. pp. 389-396.
740 IMPORTANT GROUPS OP TREATIES
than in other cases, changes in political constellations,
and the general development of events, may involve
such vital change of circumstances as to justify ^ a
State in refusing to interfere in spite of a treaty of
guarantee. It is for this reason that treaties of
guarantee to secure permanently a certain object to a
State are naturally of a more or less precarious
value to the latter. The practical value, therefore,
of a guarantee treaty, whatever may be its formal
character, would, as a rule, seem to extend only to
the early years of its existence, while the original
conditions still obtain.
Eflfeet of § 576. In contradistinction to treaties constituting
Guaran-^^ a guarantee on the part of one or more States severally,
*®®- the efiect of treaties constituting a collective guarantee
on the part of several States requires special considera-
tion. On July 4, 1867, Lord Derby maintained ^ in the
House of Lords, concerning the collective guarantee
by the Powers of the neutralisation of Luxemburg,
that, in case of a collective guarantee, each guarantor
had only the duty to act according to the treaty when
all the other guarantors were ready to act likewise ;
that, consequently, if one of the guarantors themselves
should violate the neutrality of Luxemburg, the duty
to act according to the treaty of collective guarantee
would not accrue to the other guarantors. This opinion,
although approved by Viscount Grey, then British
Secretary of State for Foreign Affairs, at the outbreak
of the World War in 1914, is certainly not correct,^ and
I do not know of any pubUcist who would, or could,
approve of it.* There ought to be no doubt that, in a
case of collective guarantee, one of the guarantors
' See above, § 539. § 440 ; and Quabbe, op. cit., pp. 149-
' Hansard, vol. 183, p. 150; see 159.
Sanger and Norton, op. cit., pp.
77-90. * See now, however, Smith, Inter-
' See Hall, § 113 ; Bluntsohli, national Law, 5th ed. (1918), p. 144.
TREATIES OF GUARANTEE ANB OF PROTECTION 741
alone carmot be considered bound to act according to
the treaty of guarantee. For a collective guarantee
can only have the meaning that the guarantors should
act in a body. But if one of the guarantors themselves
violates the object of his own guarantee, the body of
the guarantors remain, and it is certainly their duty
to act against such faithless co-guarantor. If, however,
the majority,^ and therefore the body of the guarantors,
were to violate the very object of their guarantee, the
duty to act against them would not accrue to the
minority.^
Different, however, is the case in which a number of
Powers have collectively and severally guaranteed a
certain object. Then, not only as a body but also
individually, it is their duty to interfere in any case of
violation of the object of guarantee.
And it miist be emphasised that the mere fact that
a number of States guarantee a certain object to another
State in one and the same treaty does not make the
guarantee a deflective guarantee ; for a guarantee is
collective only w^n it is expressly stated to be so, by
the use of the terms ' collective ' or ' joint ' or the like.
However this may be, since the British Foreign Office
defends a peculiar construction of the term ' collective
guarantee,' Powers must in future be careful to define
their intention, in case they enter into a treaty of
collective guarantee. No such treaty has been con-
cluded since 1867.
§ 576a. Different from real guarantee treaties are Pseudo-
such treaties as declare the policy of the parties with tees™"
regard to the maintenance of their territorial status quo.
Whereas treaties guaranteeing the maintenance of the
territorial status quo engage the guarantors to do what
' See against this stateiment Law, during its meeting at Christiania
Quabbe, op. cit. , p. 158. in 1912, informally discussed treaties
of guarantee. See Annuaire, xxv.
' The Institute of International (1912), p. 638.
742 IMPORTANT GEOUPS OP TREATIES
they can to maintain such status quo, treaties declaring
the policy of the parties with regard to the maintenance
of their territorial staius quo do not contain any legal
engagements, but simply state the firm resolution of
the parties to uphold the staius quo. In contradistinc-
tion to real guarantee treaties, such treaties declaring
the poHcy of the parties may fitly be called pseudo-
guarantee treaties, and although their pohtical value
is very great, they have scarcely any legal importance.
For the parties do not bind themselves to pursue a
policy for maintaining the status quo ; they only declare
their firm resolution to that end. Further, the parties
do not engage themselves to uphold the status quo, but
only to communicate with one another, in case the
status quo is threatened, with a view to agreeing upon
such measures as they may consider advisable for the
maintenance of the status quo. To this class of pseudo-
guarantee treaties belonged two sets of declarations
which were of considerable diplomatic importance before
the World War :—
(1) The declarations ^ exchanged on May 16, 1907,
between France and Spain on the one hand, and, on
the other hand, between Great Britain and Spain, con-
cerning the territorial status quo in the Mediterranean.
Each party declared that its general policy with regard
to the Mediterranean was directed to the maintenance
of the territorial status quo, and that it was therefore
resolved to preserve intact its rights over its insular
and maritime possessions within the Mediterranean.
Each party declared, further, that, should circumstances
arise which would tend to alter the existing territorial
status quo, it would communicate with the other party
in order to afford it the opportunity to concert, if
desired, by mutual agreement the course of action
which the two parties should adopt in common.
■ See Martens, N.R.O., 2nd Ser. xxxv. p. 692, and 3rd Ser. i. p. 3.
TREATIES OP GUARANTEE AND OF PROTECTION 743
(2) The declarations ^ conceriung the maintenance
of the territorial status quo in the North Sea, signed at
Berlin on April 23, 1908, by Great Britain, Germany,
Denmark, France, Holland, and Sweden, and con-
cerning the maintenance of the territorial status quo
in the Baltic, signed at St. Petersburg, on the same date,
by Germany, Denmark, Russia, and Sweden. The
parties declared their firm resolution to preserve intact
the rights of all the parties over their continental and
insular possessions within the region of the North Sea
and of the Baltic respectively. And the parties con-
cerned further declared that, should the existing terri-
torial status quo be threatened by any events whatever,
they would enter into communication with one another,
with a view to agreeing upon such measures as they
might consider advisable in the interest of the main-
tenance of the status quo.
There is no doubt that the texts of the declarations
concerning the status quo in the North Sea and the
Baltic stipulated a stricter engagement of the respective
parties than the texts of the declarations concerning
the status quo in the Mediterranean, but neither ^ of
them comprised a real legal guarantee.
§ 577. Different from guarantee treaties are treaties Treaties
of protection. Whereas the former constitute the guar- tion^
antee of a certain object to the guaranteed State, treaties
of protection are treaties by which strong States simply
engage to protect weaker States without any guarantee
whatever. A treaty of protection must, however, not
be confounded with a treaty of protectorate.^
* See Martens, ^.iJ.C, 3rd Ser.i. (p. 105) considers the declarations
pp. 17 and 18. conoerning the North Sea and the
^ Whereas Quabbe (p. 97, n. 1) Baltic to have been real guarantee
correctly denies the character of a treaties,
real guarantee to the declarations
concerning the Mediterranean, he ' See above, § 92.
744
IMPORTANT GROUPS OF TREATIES
COMMERCIAL TREATIES
Taylor, § 354— Moore, v. §§ 765-769— Melle in Holtzendorff, iii. pp. 143-256
—Liszt, § 28— UUmann, § 145— Bonfils, No. 918— Despagnet, No. 462—
Pradier-Fod6r6, iv. Nos. 200S-2033— M^rignhao, ii. pp. 688-693—
Rivier, i. pp. , 370-374— Fiore, ii. Nos. 1065-1077, and Code, Nos. 853-
864 — Martens, ii. §§ 51-53 — Steok, FersacA iiier Hamdds- vmd
Schiffahrtsvertrdge (1782) — Sohraut, System der Handdtvertrage und
der Meietlegunetigung (1884) — Veilloovitch, Les Traitis de Commerce
(1892) — Nys, Lea Origines du Droit international (1894), pp. 278-294 —
Herod, Favoured Nation Treatment (1901) — Calwer, Die Meisthegim-
stigung in den Vereinigten Staaten von Nord-America (1902) — Glier, Die
meisfbegunstigunga-Klauael (1906) — Cavaretta, La Claiuola ddla Nazione
piit favorita (1906) — Barclay, Problems of International Pra^ice and
Diplomacy (1907), pp. 137-142 — Hombeok, The Most-Favowed-Nation
Clause (1910), and in A.J., iii. (1909), pp. 394-422, 619-647, and 798-
827 — Weber, System dea deutachen Hamddsvertrage (1912) — Teubem,
Die meistbegiinatigungs-Klau^el (1913) — Hepp, Thiorie g4n4rale de la
Clause de la Nation la plu£ favoria^e (1914) — Crandall, op. cit. , §§ 172-177
— Lehr in R.L, xxv. (1893), pp. 313-316— Visser in B.I., 2nd Ser. iv.
(1902), pp. 66-87, 159-177, and 270-280— Lehr in R.L, 2nd Ser. xii.
(1910), pp. 657-668 — Shepheard in the Journal of the Society of Com-
parative Legislation, New Ser. iii. (1901), pp. 231-237, and v. (1903),
pp. 132-136 — Oppenheim in the Law Quarterly Review, xxiv. (1908),
pp. 328-334— Lederle and Springer in Z.L, xxvii. (1918), pp. 154-176
and 314-322.
Com- § 578. Commercial treaties are treaties conceming
Treaties ^^^ commerce and navigation of the contracting States,
j° and concerning the subjects of these States who are
engaged in commerce and navigation. Incidentally,
however, they also contain clauses concerning consuls
and various other matters. They are concluded, either
for a hmited or an unlimited number of years, and
either for the whole territory of one or either party,
or only for a part of such territory. AU full sovereign
States are competent to enter into commercial treaties,
but it depends upon the special case whether half and
part sovereign States are hkewise competent. Although
competent to enter upon commercial treaties, a State
may, by an international compact, be restricted in
its freedom with regard to its commercial pohcy. Thus,
COMMERCIAL TREATIES 745
according to the Convention of September 10, 1919,
revising the General Act of the Berlin Congo Conference
of February 26, 1885, all the Powers which have posses-
sions in the Congo district must grant complete freedom
of cormnerce to all the parties to the convention. Again,
to give another example, Austria, Germany, and Bulgaria
are bound, while certain clauses of the Treaties of
Peace are in force, to extend to all the Allied and
Associated States every privilege in regard to the impor-
tation, exportation, or transit of goods granted by them
to any foreign country whatever.^ And doubtless a
similar obhgation will be imposed on Hungary and
Turkey.
The details of commercial treaties are, for the most
part, purely technical, and are, therefore, outside the
scope of a general treatise on International Law.
There are, however, two points of great importance
which require discussion — namely, the meaning of
coasting-trade, and of the most-favoured-nation clause.
§ 579. The meaning of the term coasting-trade ^ in Meaning
commercial treaties must not be confounded with its °ng-t™ie
meaning in International Law generally. The meaning ^^^°^{
of the term in International Law becomes apparent Treaties.
through its synonym cabotage — ^that is, navigation from
cape to cape along the coast, combined with trading
between the ports of the coast concerned, without going
out into the open sea. Therefore, trade between
Marseilles and Nice, between Calais and Havre, between
London and Liverpool, and between Dubhn and Belfast
is coasting-trade, but trade between Marseilles and
Havre, and between London and Dubhn is not. It is a
universally recognised rule ^ of International Law that
every littoral State can exclude foreign merchantmen
' See Treaty of Peace with Ger- ' See Oppenheim in the Law
many, Article 267; with Austria,. Quarterly Review, xxiv. (1908), pp.
Article 220 ; with Bulgaria, Article 328-334.
150. ' See above, § 187.
746 IMPORTANT GROUPS OF TREATIES
from the cabotage within its maritime belt. Cabotage
is the contrast to the oversea ^ carrying-trade, and has
nothing to do with the question of free trade from or
to a port on the coast to or from a port abroad. This
question is one of commercial poHcy, and International
Law does not prevent a State from restricting to vessels
of its subjects the export or the import to its ports, or
from allowing such export or import imder certain
conditions only.
There is no doubt that originally the meaning of
coasting-trade in commercial treaties was identical with
its meaning in International Law generally, but there
is likewise no doubt that the practice of the States
gives now a much more extended meaning to the term
coasting-trade, as used in commercial treaties. Thus
France distinguishes between cabotage petit and grand ;
whereas petit cabotage is coasting-trade between ports
in the same sea, grand cabotage is coasting-trade between
a French port situated in the Atlantic Ocean and a
French port situated in the Mediterranean, and —
according to a statute of September 21, 1793 — both
grand and pdit cabotage are exclusively reserved for
French vessels. Thus, further, the United States of
America has always considered trade between one of
her ports in the Atlantic Ocean and one in the Pacific
to be coasting-trade, and has exclusively reserved it for
vessels of her own subjects ; she considered such trade
to be coasting-trade even when, before the Panama
Canal was built, the carriage took place, not exclusively
by sea around Cape Horn, but partly by sea and
partly by land across the Isthmus of Panama. Great
Britain has taken up a similar attitude. Section 2
' It must be emphasised that navi- — is not ooasting-trade but oversea
gation and trade from abroad to trade, provided that all the pas-
several ports of the same ooast sengers and cargo are shipped from
suooessively — for instance, from abroad.
Dover to Calais and then to Havre
COMMERCIAL TREATIES 747
of the Navigation Act of 1849 (12 & 13 Vict. c. 29)
enacted that ' no goods or passengers shall be carried
coastwise from one part of the United Kingdom to
another, or from the Isle of Man to the United Kingdom,
except in British ships,' and thereby declared trade
between a port of England or Scotland to a port of
Ireland or the Isle of Man to be coasting-trade exclusively
reserved for British ships, in spite of the fact that the
open sea flows between these ports. And although
the Navigation Act of 1849 is no longer in force, and
this country now does admit foreign ships to its coasting-
trade, it nevertheless still considers all trade between
one port of the United Kingdom and another to be
coasting-trade, as becomes apparent from § 140 of
the Customs ConsoUdation Act of July 24, 1876
(39 & 40 Vict. c. 36). Again, Germany declared by a
statute, of May 22, 1881, coasting-trade to be trade
between any two German ports, and reserved it for
German vessels, although vessels of such States could
be admitted as on their part admitted German vessels to
their own coasting-trade. Thus trade between Koenigs-
berg in the Baltic and Hamburg in the North Sea is
coasting-trade.
These instances are sufficient to demonstrate that
an extension of the original meaning of coasting-trade
has reaUy taken place, and has found general recogni-
tion. A great many commercial treaties have been
concluded between such countries as estabhshed that
extension of meaning and others, and these commercial
treaties no doubt make use of the term coasting-trade
in this its extended meaning. It must, therefore, be
maintained that the term coasting-trade or cabotage as
used in commercial treaties has acquired the following
meaning : Sea-trade between amy two forts of the same
country whether on the same coast or differeint coasts,
p-ovided always that the different coasts are all of them
748 IMPORTANT GROUPS OF TREATIES
the coasts of one and the same country as a poUtical
and geographical unit, in amtradistinction to the coasts of
colonies or dominions of such country.
In spite of this establislied extension of tlie term
coasting-trade, it did not include colonial trade until
nearly the end of the nineteenth century.^ Indeed,
when Russia, by uJcase of 1897, enacted that trade
between any of her ports should be considered coast-
ing-trade, and be reserved for Russian vessels, this did
not comprise a further extension of the conception of
coasting-trade. The reason was that Russia, although
her territory extended over different parts of the globe,
was a pohtical and geographical unit, and there was one
stretch of territory only between St. Petersburg and
Vladivostock. But when, in 1898 and 1899, the United
States of America declared trade between any of her
ports and those of Porto Rico, the Phihppines, and the
Hawaiian Islands to be coasfcing-trade, and conse-
quently reserved it exclusively for American vessels,
the distinction between coasting-trade and oversea or
colonial trade fell to the ground. It is submitted that
this American extension of the conception of coasting-
trade, as used in her commercial treaties before 1898, is
inadmissible,^ and contains a violation of the treaty
'See details in Oppenheim, loc cit. , the statute could not come into
pp. 331-332, but it is of value to force before February 1, 1892, be-
draw attention here to a French cause Article 2 of the treaty with
statute of April 2, 1889. Whereas Belgium of October 31, 1881, and
a statute of April 9, 1866, had Article 21 of the treaty with Spain
thrown open the trade between of February 6, 1882 — both treaties
France and Algeria to vessels of all to expire on February 1, 1892 —
nations, Article 1 of the statute of stipulated the same treatment for
April 2, 1889, enacts: ' La navigation Belgian and Spanish as for French
entre la France et I'Alg^rie ne pourra vessels, cabotage excepted. It is
s'effectuer que sous pavilion fran9ais.' quite apparent that, if France had
This French statute does not, as is declared trade between French and
frequently maintained, declare the Algerian ports to be coasting-trade
trade between France and Algeria to in the meaning of her commercial
be coasting-trade, but it nevertheless treaties, the expiration of the treaties
reserves such trade exclusively for with Belgium and Sj)ain need not
French vessels. The French Govern- have been awaited for putting the
ment, in bringing the bill before the law of April 2, 1889, into force.
French Parliament, explained that ' In the case of Hunt v. New York
COMMERCIAL TREATIES 749
rights of the other contracting parties. Should these
parties consent to the American extension of the mean-
ing of coasting-trade, and should other countries follow
the American lead, and apply the term coasting-trade
indiscriminately to trade along their coasts and to their
colonial trade, the meaning of the term would then
become trade between any two forts which are under the
sovereignty of the same State. The distinction between
coasting-trade and colonial trade would then become
void, and the last trace of the synonymity between
coasting-trade and cabotage would have disappeared.
§ 580. Most of the commercial treaties of the nine- Meaning
teenth century contain a stiptdation which is character- favoured-
ised as the most-favoured-nation clause. The wording 2,!'*i°°
o cjlauae.
of this clause is by no means the same in all treaties,
and its general form has therefore to be distinguished
from several others which are more speciaUsed in their
wording. According to the most-favoured-nation clause
in its general form, all favours which either contracting
party has granted in the past, or wiU grant in the future,
to any third State must be granted to the other party.
But the real meaning of this clause in its general form
has been controverted ever since the United States of
America entered into the Family of Nations, and began
to conclude commercial treaties embodjdng it. Whereas,
in former times, the clause was considered obviously to
have the effect of causing all favours granted to any
one State at once and unconditionally to accrue to all
other States having most-favoured-nation treaties with
the grantor, the United States contended that these
favours could accrue to such of the other States only as
and Porto Rico Stecmiship Oo., [IQOl) Porto Bioan Act, and because, ao-
182 U.S. 392, the court was com- cording to the practice of the
pelled to confirm the extension of American courts, statutory law
the term coasting-trade to trade overrules previous International
between any American port and Law — see above, § 21a (2), and
Porto Rico, because this extension Oppenheim, The Panama Canal
was recognised by Section 9 of the Conflict (1913), pp. 40-42.
750 IMPORTANT GROUPS OF TREATIES
fidJUled the same conditions under which these favours
had been allowed to the grantee. The majority of the
commercial treaties of the United States, therefore, do
not contain the most-favoured-nation clause in its
general form, but in what is called its conditional,
qualified, or reciprocal form. In this form it stipulates
that all favours granted to third States shall accrue to
the other party unconditionally, in case the favour^
have been allowed unconditionally to the grantee, but
only under the same compensation, in case they have
been granted conditionally. The United States, however,
has always upheld the opinion that, even if a com-
mercial treaty contains the clause in its general, and
not in its qualified, form, it must always be interpreted
as though it were worded in its quaJified form, and
the Supreme Court of the United States has confirmed ^
this interpretation.
Now nobody doubts that, according to the qualified
form of the clause, a favour granted to any State can
only accrue to other States having most-favoured-
nation treaties with the grantor, provided they fulfil
the same conditions, and ofier tie same compensations
as the grantee. Again, nobody doubts that, if the clause
is worded in its so-called unconditional form, stipu-
lating that a favour should accrue to other States
whether it was allowed to the grantee gratuitously or
conditionally against compensation, all favours granted
to any State accrue immediately and without condi-
tion to all the other States. However, as regards the
clause in its general form, what might, broadly speaking,
be called the European interpretation is confronted by
the American interpretation. This American inter-
pretation is, I beUeve, unjustifiable, although it is of
importance to mention that two European writers of
' See Bartram v. RiAeriBon, 122 U.S. 116, and Whitney v. BoberUon,
124 U.S. 190.
UNIONS CONCERinNG NON-POLITICAL INTERESTS 751
such authority as Martens (ii. p. 225) and Westlake
(i. p. 294) approve of it.
It has been suggested ^ that the controversy should
be brought before the Hague Court of Arbitration ; yet
the United States will never consent to this. Those
States which complain of the American interpretation
had therefore better notify their commercial treaties
with the United States, and insert in new treaties the
most-favoured-nation clatise in such a form as puts
matters beyond all doubt. So much is certain, a State
that at present enters into a commercial treaty with
the United States comprising the clause in its general
form cannot complain ^ of the American interpretation,
which, whatever may be its merits, is now a matter of
common knowledge.^
VI
UNIONS CONCERNING COMMON NON-POLITICAL
INTERESTS
Nys, ii. pp. 311-318 — M6rigiihac, ii. pp. 694-732 — Descamps, Les
intemationaiix et leur Avenir (1894) — Moynier, ies Bwrewux inter-
nottonattx des Unions universelles (1892) — Poinsard, Let Unions et
MUentea intemationdka (2nd ed. 1901) — Reinsch, Public International
Unions (1911), and in A. J., i. (1907), pp. 579-623, and iii. (1909), pp. 1-45
— ^ayre, Bkcperiments in International Administration (1919) — Renault
in E.G., iii. (1896), pp. 14-26— Guillois in R.G., xxii. (1915), pp. 5-127.
§ 581. The development of international intercourse object of
has called into existence innumerable treaties for the unions.
purpose of satisfying economic, and other non-poHtical,
interests of the several States. Each nation concludes
* See Barclay, op. cit. , pp. 142 and favoured-nation clause. Readers
159. must be referred for further infor-
* See above, § 554 (10). matiou to the works and articles of
* It is not possible in a general Calwer, Herod, Glier, Cavaretta,
treatise on International Law to Visser, Melle, and others quoted
enter into the details of the history, above before § 578. See also Moore,
the different forms, the application, v. §§ 765-769, and Crandall in A.J.,
and the interpretation of the most- vii. (1913), pp. 708-723.
752 IMPORTANT GROUPS OP TREATIES
treaties of commerce, of navigation, of extradition, and
of many other kinds with most of the other nations,
and tries in this way, more or less successfully, to foster
its own interests. Many of these interests are of such
a particular character, and depend upon such individual
circumstances and conditions, that they can only be
satisfied and fostered by special treaties, from time to
time concluded by each State with other States. Yet
experience has shown that the several States have also
many non-poHtical interests in common, which can
better be satisfied and fostered by a general treaty
between a great number of States than by special treaties
separately concluded between the several parties.
Therefore, since the second half of the nineteenth century
such general treaties more and more came into being,
and it is certain that their number will in time increase.
Each of these treaties created what is called a Union
among the contracting parties, since these parties united
for the purpose of settling certain subjects in common.
The number of States which are members of these Unions
varies, of course ; and whereas some of them wiU cer-
tainly become in time universal in the same way as the
Universal Postal Union, others wiU never reach that
stage. But all the treaties which have created these
Unions are general treaties, because a lesser or greater
number of States are parties, and these treaties have
created so-called Unions, although the term ' Union ' is
not always made use of .^
5816. At the Peace Conference at Paris in 1919, the
AlKed and Associated Powers availed themselves of the
opportunity to review the existing general treaties of
• A general treatise on Public recht, which is to comprise three
International Law cannot attempt to volumes, and of which the first
go into the details of these Unions ; volume appeared in 1910. See also
it is really a matter for monographs Reinsch, PtAlic IntertuUiotuU Uniont
or for a treatise on International (1911), and Niemeyer in iJ.G., xviii.
Administrative Law, such as Neu- (1911), pp. 492-499.
meyer's Internationales Verwaltv.ngs-
tnnONS CONCERNING NON-POLITICAI, INTERESTS 753
' an economic or technical character/ Treaties of this Position
class would seem to correspond generally with what°fter°S™
are in this book called Unions concerning non- ™*"''^
political interests. With regard to such treaties, it is
expressly provided by each of the Treaties of Peace that
only those which are there mentioned are to be apphed
for the future between the Central Power concerned and
the Allied and Associated Powers party thereto. Of
the treaties so mentioned, some are to be applied, as
from the coming into force of the Treaty of Peace,
without modification ; others are to be subject to
special stipulations contained in the Treaty of Peace;
to others the Central Power concerned undertakes to
accede, or to accord ratification.^ Moreover, the treaties
between the Principal Allied and Associated Powers
and certain minor Allied Powers contain provisions
under which the latter undertake to accede to specified
general treaties.^ The arrangements made at the Peace
Conference cannot l^aUy modify the rights of States
which were parties to any particular general treaty, but
were not parties to the Treaties of Peace ; ^ but it may
be assumed^ that any objection raised by any such State
would be adjusted by negotiation, and the number and
poKtical importance of the Powers which were repre-
sented at Paris warrants the expectation that, in
practice, of those general treaties of an economic or
technical character to which one of the Central
Powers is a party, only those wiU be regarded
as being in force which are enumerated in the
Treaties of Peace. In point of fact, as wiU appear in
the remaining paragraphs of this volume, almost aU
general treaties of importance are so enumerated. It
is important to emphasise that the observations made
* See Section n of the ' Economic ' See above, § 522.
Claoses' in the varioos Treaties of
Peace. ' The editor is responsible for this
* As to these treaties, see above, section, and for the opinions ex-
§ 568A. pressed in it.
VOL. L 3b
754 IMPORTANT GROUPS OF TREATIES
in this section are only applicable to general treaties of
an economic or technical character. Moreover, nothing
here said is to be taken to imply that these treaties were
in any way abrogated by the World War, though they
were siispended as between beUigerents. (See below,
vol. ii. § 99.)
Post and § 582. Whereas previously the States severally con-
graphs. eluded treaties concerning postal and telegraphic
arrangements, they entered into Unions for this pvtrpose
during the second part of the nineteenth century : —
(1) Twenty-one States entered on October 9, 1874,
at Berne, into a general postal convention ^ for the pur-
pose of creating a General Postal Union. This Greneral
Union turned into the Universal Postal Union through
the Convention of Paris ^ of June 1, 1878, to which thirty
States were parties. This convention has several
times been revised by the congresses of the Union,
which have to meet every five years. The last three
revisions took place at Vienna, Washington, and Rome
respectively, in 1891, 1897, and 1906. At Rome on
May 26, 1906, a new Universal Postal Convention^
was signed by aU the members of the Family of
Nations for themselves and their colonies and de-
pendencies. This Union possesses an international
office seated at Berne.
By the Treaties of Peace,* the Central Powers imder-
take not to refuse their assent to the conclusion by the
new States (Poland, Czecho-Slovakia, etc.) which
accede to the Conventions of 1891, 1897, and 1906,
relating to the Universal Postal Union, of the special
arrangements referred to in these conventions.®
(2) A general telegraphic convention was concluded
' See Martens, X.R.G., 2nd Ser. many, Article 283; with Austria,
i. p. 651. Article 235 ; with Bulgaria, Article
^ See Martens, N.B.G., 2nd Ser. 163. The other Treaties of Peace
iii. p. 699. may be expected to contain similar
' See Martens, X.R.G., 3rd Ser. i. proTisions.
p. 355. ' SeeFischer, PoMtuTidTelegraphie
* See Treaty of Peace with Ger- im Weltverkehr (1879) ; Sohroter, Der
UNIONS CONCERNING NON-POLITICAL INTERESTS 755
at Paris as early as May 17, 1865, and in 1868 an Inter-
national Telegraph Office^ was instituted at Berne.
In time more and more States joined, and the basis of
the Union is now the Convention of St. Petersburg ^
of July 22, 1875, which has been amended several
times, the last time at Lisbon ^ on June 11, 1908.
By the Treaties of Peace, the Central Powers undertake
not to refuse their consent to the conclusion by the new
States which accede to the Conventions of 1875 and 1908,
relating to the International Telegraphic Union, of the
special arrangements referred to in these conventions.*
(3) On the general treaty of March 14, 1884, for the
protection of submarine telegraph cables,^ see above,
§287.
(4) A general radiotelegraphic convention and an
additional convention were signed on November 3,
1906, at Berlin. They were replaced by a convention
signed by thirty Powers on July 5, 1912, at London.
The International Telegraph OflS.ce at Berne serves also
as the ofl&ce for the International Union for Radio-
telegraphy. The Radiotelegraphic Convention, and the
stipulations with regard to it in the Treaties of Peace,
have been discussed above. ^
§ 583. General conventions are in existence in the
interest of transport and communication : ' —
(1) On May 15, 1886, two conventions were signed
Wdtpoatverein (1900) ; Kolland, De provisions.
la Correspondance postale et tiU- ' See Martens, N.R.O., 2nd Ser.
graphique damt les Sdatione inter- xi. p. 281. According to the Treaties
nationcUes (1901); Beelenkamp, Les of Peace (with Germany, Article 282,
Lois postaies vmiverselles (1910). with Austria, Article 234, with Bul-
' See above, § 464, and Pisoher, garia. Article 167), this treaty is to
Die Telegraphie und dae Volkerrecht be again applied between the parties
(1876). thereto without modification, and
' See Martens, N. B. G. , 2nd Ser. Bulgaria is to accede,
iii. p. 614. ' See Martens, N.R.G., 3rd Ser.
' See Martens, N.R.G., 3rd Ser. iii. p. 147, and Treaty Ser. (1913),
V. p. 208. No. 10. See above, § 174 (2),
' See Treaty of Peace with Ger- and §§ 287a and 2876, where the
many. Article 283 ; with Austria, literature concerned is also to be
Article 235 ; with Bulgaria, Article found.
163. The other Treaties of Peace ' See also the provisions regarding
may be expected to contain similar transport and communication in the
756 IMPORTANT GROUPS OF TREATIES
''''■?^p°'^ at Berne, one relating to tke technical standardisation
munica- of railways, and the other relating to the sealing of
'""^ railway trucks subject to customs inspection.^ These
two conventions were revised by two protocols, signed
ab Berne on May 18, 1907.2 According to the Treaties
of Peace, both the conventions of 1886, and the protocol
of 1907 regarding the sealing of railway trucks, are to
be again appHed between the parties thereto.^
(2) A general convention * was concluded on October
14, 1890, at Berne, concerning railway transports
and freights. The parties — ^namely, Austria-Hungary,
Belgium, France, Germany, Holland, Italy, Luxemburg,
Russia, and Switzerland — ^form a Union for this purpose,
although the term ' Union ' is not made use of. The
Union possesses an international office ^ at Berne,
which issues the Zeitsehrift fiir den ifUemationalen
Eisenhdhn Transport and the BvMetin des Transports
internationaux par chemins defer. Denmark, Boumania,
and Sweden acceded to this Union some time after its
conclusion. Additional conventions were made on
September 20, 1893, July 16, 1895, June 16, 1898, and
September 19, 1906, By the Treaties of Peace with
Gennany ® and Austria,' the High Contracting Parties
renew, in so far as concerns them, these conventions
regarding transport of goods by rail ; but if a new con-
Treaties of Peace. See also the many. Article 282 ; with Austria,
convention signed at Brussels on Article 234 ; with Bulgaria, Article
February 4, 1898, by Germany, 162.
Belgium, France, and HoUand, re- ' See Martens, X.R.G., 2nd Ser.
lating to the tonnage measurement xix. p. 289.
of vessels for inland navigation ' See above, § 470, and Kaufmann,
(Martens, N^.B.6., 2nd Ser. xxviii. Die mitteleuropdischen Eisenbahnen
p. 733). This convention is, under und das intematioTiale offentliche
the Treaty of Peace with Germany, Becht (1893) ; Rosenthal, Interna-
to be again applied without modifica- tumales Eisenbahnfrachtreehl (1894) ;
tion between the parties thereto ^&gae,DesR<iccordernerUsxntenwtio-
(see Article 282). navx des Chemins de Fer, etc. (1901) ;
' Martens, N. R. G, , 2nd Ser. xrii. Eger, Das intemationale Ueberein-
p. 42. kommen uber deal Msenbahnfrachtver-
2 Martens, N.R.G., 3rd Ser. ii. ieAr (2nd ed. 1903).
p. 878. ' Article 366.
' See Treaty of Peace with Ger- ' Article 313.
UNIONS CONCERNING NON-POLITICAL INTERESTS 757
vention is concluded within five years to replace them,
Grermany and Austria are to be bound by it.
(3) A general convention concerning the International
Circulation of Motor Vehicles^ was concluded on October
11, 1909, at Paris. The original signatory Powers were :
Great Britain, Grermany, Avistria-Hungary, Belgium,
Bulgaria, Spain, France, Greece, Italy, Monaco, Monte-
negro, Holland, Portugal, Eoumania, Russia, Serbia.
To give effect to this convention in Great Britain,
Parliament passed in 1909 the Motor Car (International
Circulation) Act,^ 9 Bdw. vn. c. 37. Under the Treaties
of Peace this convention is to be again appHed as between
the parties thereto without modification.
(4) As to the two Brussels Conventions of September
23, 1910, one for the unification of certain rules of law
with respect to collisions, and the other for the unifica-
tion of certain rules of law with respect to assistance
and salvage at sea, see above, §§ 265, 271.
(5) As to the unratified Convention of January 20,
1914, for the safety of life at sea, see above, § 265.
§ 584. On September 9, 1886, the Convention of Copy-
Beme was signed for the purpose of creating an Inter- "^
national Union for the Protection of Works of Art and
Literature. The Union has an international office ^
at Berne. An additional Act to the convention was
signed at Paris on May 4, 1896. Since, however, the
stipulations of these conventions did not prove quite
adequate, the ' Revised ^ Berne Convention ' was signed
' See Martens, iV^.iJ.G., 3rd Ser. IrUemational Copyright, (1906);
iil. p. 834, and Treaty Ser. (1910), Rothlisberger, Die Bemer Uberein-
No. 18. hunft zum Schutze von Werken der
^ See also the Motor Car (Inter- LitercUur und Kunat (1906), and in
national Circulation) Order in La Vie intematumale, ii. (1912),
Council, 1910, and Amending Order pp. 201-247.
of 1912. ■* See Martens, N.B.O., 3rd Ser.
* See above, § 467, and Orelli, iv. p. 590, and Treaty Ser. (1912), No.
DerintematiortcUeSchiitzdes Urheber- 19 ; Wauwermans, La Convention de
rechts (1887) ; Thomas, La Convention Berne (reviaie d, Berlin) pour la Pro-
littdraire et a/rtittique irUemationale, tection des CEJuvre* Littdrairet et
etc. (1894); Briggs, The Law of .4rtM«»gue« (1910).
758 IMPORTANT GROUPS OP TREATIES
at Berlin on November 13, 1908, and completed by an
additional protocol signed at Berne on March 20,
1914. The original signatory Powers of this convention
were Great Britain, Germany, Belgium, Denmark,
Spain, France, Haiti, Italy, Japan, Liberia, Luxemburg,
Monaco, Norway, Sweden, Switzerland, Tunis ; other
States acceded later.^ To give effect to the Conven-
tion of Berne of 1886, ParHament passed in 1886 the
' Act to amend the Law respecting International and
Colonial Copyright ' (49 & 50 Vict. c. 33). This Act,
however, was, in consequence of the ' Revised Berne
Convention ' of Berlin of 1908, repealed by § 37 of
the Copyright Act, 1911 {1 & 2 Geo. v. c. 46), and §§ 29
and 31 of the latter Act now deal with International
Copyright.
Commerce § 585. In the interests of commerce and industry the
Industry. foUowiug Uuions are in existence : — •
(1) On July 5, 1890, the Convention of Brussels was
signed for the purpose of creating an International
Union for the Pubhcation of Customs Tariffs.^ The
Union has an international office ^ at Brussels, which
publishes the customs tariffs of the various States of
the globe. Forty-five States were members of the
Union before the World War. By the Treaties of Peace
this convention is to be again applied between the parties
thereto without modification.^
(2) On March 20, 1883, the Convention of Paris ^ was
signed for the purpose of creating an International Union
for the Protection of Industrial Property. The original
members were : Belgium, Brazil, San Domingo, France,
' By Article 286 of the Treaty of to them.
Peace with Germany, these conven- ^ See Martens, N.B.6., 2nd Ser.
tions are again to be applied between xviii. p. 558.
the parties thereto, except in so far ^ See above, § 469.
as they are modified by the Treaty * Treaty of Peace with Germany,
of Peace. Austria (Treaty of Peace Article 282 ; with Austria, Article
with Austria, Article 239) and 234 ; with Bulgaria, Article 162.
Bulgaria (Treaty of Peace with ' See Martens, N.R.6., 2nd Ser.
Bulgaria, Article 166) are to accede x. p. 133.
UNIONS CONCERNING NON-POLITICAL INTERESTS 759
Holland, Guatemala, Italy, Portugal, Salvador, Serbia,
Spain, and Switzerland. Great Britain, Japan, Denmark,
Mexico, the United States of America, Sweden-Norway,
Germany, Cuba, and Austria-Hungary acceded later.
This union established an international office ^ at
Berne : its object is the protection of patents, trade-
marks, and the hke. On April 14, 1891, at Madrid,
it agreed to arrangements concerning false indications
of origin and the registration of trade-marks ; ^ and an
additional Act ^ was signed at Brussels on December 14,
1900. But in 1911 a conference met at Washington
in order to revise the previous conventions, and on
June 2, 1911, was signed the International Convention
for the Protection of Industrial Property, which is now
the basis of the Union.* The signatory Powers were
Great Britain, Grermany, Austria-Hungary, Belgium,
Brazil, Cuba, Denmark, San Domingo, Spain, the United
States of America, France, Italy, Japan, Mexico,
Norway, Holland, Portugal, Sweden, Switzerland, and
Tunis. Most of these States have ratified the con-
vention. By the Treaties of Peace with Germany ^
and Austria,® these conventions are to be again applied
between the parties except in so far as they are affected
by the provisions of the Treaties of Peace. Bulgaria '
is to accede to them.
(3) On March 5, 1902, the Convention of Brussels *
was signed, concerning the abohtion of bounties on
the production and exportation of sugar. An addi-
' See above, § 467. * See Treaty Ser. (1913), No. 7
' See Martens, N.B.O., 2nd Ser. and No. 8, and Martens, y.R.G.,
xxii. p. 208 ; Pelletier et Vidal- 3rd Ser. viii. p. 760.
Noguet, La Coavention d' Union * Article 286. ' Article 237.
pour la Protection de la Propriety ' Article 166.
induatridle du 20 inara 1883 et les " See Martens, N.R.G., 2nd Ser.
Conf&encea de Rsviaion poatMeures xxxi. p. 272; Kaufmann, Welt-
(1902) ; Pillet, Le Bigime inter- Zudcer Industrie und intemationaies
nationcU de la ProprUte induatrielle und coloniales Recht (1904) ; Borel
(1911) in R.I., 2nd Ser. xiv. (1912), pp.
' See Martens, X.R.O., 2nd Ser. 150-158; Andtdin R.O., xix. (1912),
XXX. p. 475. pp. 665-689,
760 IMPORTANT GROUPS OF TREATIES
tional Act ^ was signed at Brussels on August 28, 1907.
A Permanent Commission was established at Brussels
for the purpose of supervising the execution of the con-
vention.2 But Great Britain and Italy withdrew in
1912, and the convention is not mentioned in the Treaties
of Peace ; it seems therefore, for practical purposes, to
be no longer in force,
i^ioui- g 58g, Three general conventions are in existence in
the interest of agriculture : —
(1) On June 7, 1905, the Convention for the Creation
of an International Agricultural Institute ^ was signed
at Rome by forty States. The Institute has its seat
at Rome. By the Treaties of Peace this convention is
to be again apphed between the parties to it without
modification.*
(2) Owing to the great damage done to grapes through
phylloxera epidemics a general convention ^ for the
prevention of the extension of such epidemics was
concluded on September 17, 1878, at Berne. Its place
was afterwards taken by the convention ® signed at
Berne on November 3, 1881. The original members
were : Austria-Hungary, France, Grermany, Portugal,
and Switzerland. Belgium, Italy, Spain, Holland,
Luxemburg, Roumania, and Serbia acceded later. A
further convention was signed on April 15, 1889. By
the Treaties of Peace these conventions are to be again
apphed without modification between the parties to
them, and Bulgaria is to accede to them.'
(3) On March 19, 1902, a general convention ^ was
» See Martens, JV. R. O. , 3rd Ser. i. 162.
p. 874. '■ See Martens, N.R.O., 2nd Ser.
* See above, §§ 462 and 471. vi. p. 261.
' See above, § 471a; Martens, • See Martens, y.R.O.,2ad Ser.
j^^R.O., .3rd Ser. ii. p. 238, and viii. p. 435.
Treaty Ser. (1910), No. 17 ; Louis- ' See Treaty of Peace with Gter-
Dop in La Vie iiitemationale, i. many. Article 282 ; with Austria,
(1912), pp. 428-454. Article 234 ; with Bulgaria, Article
* See Treaty of Peace with Ger- 167.
many. Article 282; ^vith Austria, ' See Martens, A^iJ.G., 2nd Ser,
Article 234 ; with Bulgaria, Article xxx. p. 686.
imiONS CONCEKffING NOU-POLTTICAI. DiTKRESTS 761
signed at Paris, concerning the preservation of birds
useful to agricultaie, by Germany, Austria-Hungary,
Bdgium, Spain, France, Greece, Luxemburg, Monaco,
Norway, Portugal, Sweden, Switzerland. By the Treaties
of Peace this convention is to be again applied between
the parties thereto without modification. Bulgaria is
to accede to it.*
§ 587. Apart from the Labour Convention (see above. Welfare
§ 568*), general treaties are in existence with regard to ing °'
the welfare of the working classes : * — classes.
(1) On September 26, 1906, was signed at Berne a
convention^ concerning the prohibition of the use of
white phosphorus in the manufacture of matches. The
original parties were : Grermany, Denmark, France,
Holland, Luxemburg, Switzerland. Great Britain and
some other States acceded later. To give effect to this
convention in Great Britain, Parliament passed, in
1908, the White Phosphorus Matches Prohibition Act
(8 Edw. vn. c. 42). By the Treaties of Peace this
convention is to be again apphed between the parties
to it without modification. Austria and Bulgaria are
to accede.*
(2) Likewise at Berne on September 26, 1906, was
signed the convention ^ for the prohibition of night-
work for women in industrial employment. The
original parties were : Great Britain, Germany, Austria-
» See Treaty of Peace with Ger- Pic in S.G., id. (1904), p. 515, lii.
numy. Article 282; with Anstzia, (1905), p. 565, siT. (1907), p. 495,
Article 234 ; with Bnlgaria, Article sx. (1913), p. 752. See also Reports
167. of the Intematioiml Assoeiataon for
~ See Gemma, H ZHritto mier- Labour Legislstioii.
nazionale dd Lavoro (1912) ; Sinzot, a gee ilartens, S.B.G., 3nl Ser.
Traita iiUenuUioMtux pour la Pro- jj^ f^-o and Treaty Ser. (1909),
Ueiion den TnamOlam (1911); y^^ i.
Mahaim, Le Droit inUmatumal ' ' . , _ .^. _
imcHa- (1913), and in R.I., 2nd See "fteaty rf Peace with Ger-
Ser. riT. (1912), pp. 113-128, 388 "^y,' tl? - u 4 T - ^?**f^
410; Eeichesbei£ IiOenuUiimakr ^<^ 240; with Bnlgana, Article
ArbeUerxhttis. (1913); Xammaseh, 1°'-
Das VoOterredU tuuJi dem Kriege * See Martens, X.R.G., 3rd Ser.
(1917), pp. 48-54 ; Bauer, ArbeUar- IL p. 861, and Treaty Ser. (1910),
eehvb md V&JxrgaaoRgchafi (1918) ; No. 21.
762 IMPORTANT GROUPS OF TREATIES
Hungary, Belgium, Spain, France, Luxemburg, Holland,
Portugal, and Switzerland. Italy and Sweden, which
had signed the convention, but had not ratified in time,
acceded in 1910. By the Treaties of Peace this con-
vention is to be again applied without modification be-
tween the parties thereto. Bulgaria is to accede to it.^
Weights, § 588. One Union concerning weights and measures
Coinage?' ^^d two monetary Unions are in existence : —
(1) In the interest of the unification and improve-
ment of the metric system, a general convention ^ was
signed at Paris on May 20, 1875, for the purpose of
instituting at Paris an International Office ^ of Weights
and Measures. The original parties were : Argentina,
Austria-Hungary, Belgium, Brazil, Denmark, France,
Germany, Italy, Peru, Portugal, Russia, Spain, Sweden-
Norway, Switzerland, Turkey, the United States of
America, and Venezuela ; but Brazil has never ratified,
and Venezuela withdrew in 1912. Other States acceded
later. By the Treaties of Peace this convention is to
be again applied without modification by the parties
thereto.^
(2) On December 23, 1865, Belgium, France, Italy,
and Switzerland signed the Convention of Paris which
created the so-called ' Latin Monetary Union ' between
the parties ; Greece acceded in 1868.^ This convention
has been four times renewed and amended — namely, in
1878, 1885, 1893,« and 1920.
Another Monetary Union is that entered into by
Denmark, Sweden, and Norway, by the Convention of
Copenhagen ' of May 27, 1873.
' See Treaty of Peace with Ger- many, Article 282 ; with Austria,
many. Article 282 ; with Austria, Article 234 ; with Bulgaria, Article
Article 234; with Bulgaria, Article 162.
167. ' See Martens, N.R.G., xx. pp.
' See Martens, N.R.O., 2nd Ser. 688 and 694.
i. p. 663, and Guillaume in La Vie " See Martens, N.R.G., 2nd Ser.
intemationaU, iii. (1913), pp. 5-44. iv. p. 725, xi. p. 65, xxi. p. 285.
' See above, g 466. ' See Martens, N.R.O., 2nd Ser.
" See Treaty of Peace with Ger- i. p. 290.
UNIONS CONCEENING NON-POLITICAL INTEEESTS 763
These two Unions are, of course, not mentioned in the
Treaties of Peace, because no Central Power was a party
to them, and their applicabihty is wholly unaffected by
the proceedings at the Peace Conference at Paris in 1919.
On November 22, 1892, the International Monetary
Conference ^ met at Brussels, where the following States
were represented : Great Britain, Austria-Hungary,
Belgium, Denmark, France, Germany, Greece, Holland,
Italy, Mexico, Portugal, Roumania, Spain, Sweden-
Norway, Switzerland, Turkey, and the United States of
America. The deliberations of this conference, however,
had no practical result.^
§ 589. On March 15, 1886, Belgium, Brazil, Italy, official
Portugal, Serbia, Spain, Switzerland, and the United tions!"*
States of America signed at Brussels a convention ^
concerning the exchange of their ofl&cial documents,
and of their scientific and hterary pubUcations, in so
far as they are edited by the Governments. The same
States, except Switzerland, signed under the same date
at Brussels a convention * for the exchange of their
journaux offidels ainsi que des annales et des documents
parlementaires. These two conventions are not referred
to in the Treaties of Peace, because none of the Central
Powers was a party to them, and their applicabihty is
unaffected by the proceedings at the Peace Conference
at Paris.
§ 590. In the interest of pubhc health, as endangered sanita-
by cholera and plague, a number of so-called sanitary *'°"-
conventions have been concluded : —
(1) On January 30, 1892, Great Britain, Germany,
Austria-Hungary, Belgium, Denmark, Spain, France,
Greece, Italy, Holland, Portugal, Russia, Sweden-
* See Martens, N.B.G., 2nd Ser. FinwnTsrecU (1912), pp. 863-901.
xxiv. pp. 167-478. ' See Martens, N.R.O., 2nd Ser.
" Onthewholesubjeet, seejanssen, xiv. p. 287.
Let Conventions mon^taires (1911), * See Martens, N.S.O., 2nd Ser,
and Lippert, Daa internationoUe xiv. p. 285,
764 IMPORTANT GROUPS OF TREATIES
Norway, and Turkey signed the International Sanitary
Convention of Venice.^
(2) On April 15, 1893, Germany, Austria-Hungary,
Belgium, France, Italy, Luxemburg, Montenegro,
Holland, Russia, and Switzerland signed the Cholera Con-
vention of Dresden ; ^ but Montenegro has not ratified.
Great Britain and other States acceded later.
(3) On April 3, 1894, Great Britain, Germany,
Austria-Himgary, Belgium, Denmark, Spain, France,
Greece, Italy, Holland, Persia, Portugal, and Russia
signed the Cholera Convention of Paris ; an additional
declaration was signed at Paris on October 30, 1897.^
Sweden-Norway acceded later.
(4) On March 19, 1897, Great Britain, Grermany,
Austria-Hungary, Belgium, Spain, Prance, Greece, Italy,
Luxemburg, Montenegro, Turkey, Holland, Persia,
Portugal, Roumania, Russia, Serbia, and Switzerland
signed the Plague Convention of Venice ; an additional
declaration was signed at Rome on January 24, 1900.*
(5) For the purpose of revising the previous cholera
and plague conventions, and amalgamating them into
one document. Great Britain, Germany, Austria-
Hungary, Belgium, Brazil, Spain, the United States of
America, France, Italy, Luxemburg, Montenegro,
Holland, Persia, Portugal, Roumania, Russia, Switzer-
land, and Eg3rpt signed on December 3, 1903, the Inter-
national Sanitary Convention of Paris. ^ Denmark,
* See Martens, N. R. 6. , 2nd Ser. be drawn to a very valuable sugges-
xix. p. 261, and Treaty Ser. (1893), tion made by UUmann in S.I., xi.
No. 8. (1879), p. 527, and in E.G., iv.
* See Martens, JV.B.O., 2nd Ser. (1897), p. 437. Bearing in mind the
xix. p. 239, and Treaty Ser. (1894), fact that frequently in time of war
No. 4. epidemics break out in consequence
^ See Martens, N.R.6., 2nd Ser. of insufficient disinfection of the
xxiv. pp. 516 and 553, and Treaty battlefields, UUmann suggests a
Ser. (1899), No. 8. general convention instituting neutral
* See Martens, N.B.G., 2nd Ser. sanitary commissions whose duty
xxviii. p. 339, xxix. p. 495, and would be to take all necessary
Treaty Ser. (1900), No. 6. See also sanitary measures after a battle.
Loutti, La Politique sanitaire inter- ' See Martens, N'. R. O. , 3rd Ser. i.
nationale [1906). Attention should p. 78, and Treaty Ser. (1907), No. 27.
mjJONS CONCERNING NON-POLITICAl, INTERESTS 765
Norway, Sweden, and some other States acceded later.
The previous sanitary conventions remain in force for
those signatory Powers who do not become parties to
this convention.
(6) For the purpose of organising the International
Office of Publifc Health contemplated by the Sanitary
Convention of Paris of December 3, 1903, Great Britain,
Belgium, Brazil, Spain, the United States of America,
France, Italy, Holland, Portugal, Russia, Switzerland,
and Egypt signed at Rome, on December 9, 1907, an
agreement^ concerning the establishment of such an
office at Paris.^ Argentina, Bulgaria, Sweden, and other
States acceded later.^ By the Treaties of Peace aU
these six conventions are to be again applied without
modification as between the parties thereto, Bulgaria
acceding to those to which she was not a party.*
§ 591. On November 29, 1906, Great Britain, Grermany, pharma-
Austria-Hungary, Belgium, Bulgaria, Denmark, Spain, "op"^'"-
the United States of America, France, Greece, Italy,
Luxemburg, Norway, HoUand, Russia, Serbia, Sweden,
and Switzerland signed at Brussels an agreement
concerning the Unification of the Pharmacopoeial
Formulas for Potent Drugs.^ By the Treaties of Peace
this convention is to be again apphed without modifica-
tion between the parties to it.®
591a. In order to regulate the trade in, and control Opium,
the use of, opium and kindred drugs, a large number
of States met at the Hague, and signed, on January 23,
1912, an International Opium Convention.' But the
1 See Martens, N.R.G., 3rd Ser. Article 234; with Bulgaria, Articles
ii. p. 913, and Treaty Ser. (1909), 162, 167.
No. 6. = See above, § 471fc. ' See Martens, N.R.G., 3rd Ser.
' A further sanitary convention i. p. 592, and Treaty Ser. (1907),
was signed at Paris on January 17, No. 10.
1912, by a large number of Powers, ' See Treaty of Peace with (Jer-
but does not appear to have been many, Article 282; with Austria,
ratified by any (see B. and F. State Article 234 ; with Bulgaria, Article
Papers (1914, Part n), p. 230). 162.
* See Treaty of Peace with Ger- ' Pari. Papers, Misc., No. 2
many. Article 282; with Austria, (1912).
766 IMPORTANT GROUPS OF TREATIES
convention was not brought into force. A further
conference was held at the Hague in 1914, and in accord-
ance with resolutions adopted by it, a special protocol
was opened for signature, so that the convention might
be brought into operation.^ The World War inter-
vened ; but after its conclusion the Treaties of Peace
provided that the convention was to come into force
immediately. Katification of the Treaties of Peace was
to be regarded as equivalent to ratification of the con-
vention and the signature of the special protocol ;
and the High Contracting Parties agreed to enact the
legislation necessary to give effect to the convention
without delay.2
Human- § 592. In the interest of humanity and public moraUty
vlhno tliree Unions — although the term ' Union ' is not made
Morality, use of in the treaties — ^have been established, namely,
that concerning slave trade, that concerning the so-
called white slave traflic, and that concerning obscene
publications ; but the first of these appears to be no
longer in existence.
(1) A treaty concerning slave trade' was concluded
as early as 1841 between Great Britain, Austria, France,
Prussia, and Eussia. And Article 9 of the Gteneral Act
of the Berhn Congo Conference of 1885 likewise dealt
with the matter. But it was not until 1890 that a
Union for the suppression of the slave trade came into
existence. This Union was estabhshed by the Gteneral
Act ^ of the Brussels Conference, signed on July 2, 1890,
and possessed two international offices,^ namely, the
International Maritime Office at Zanzibar and the
Bureau Special attached to the Foreign Office at
Brussels. However, the General Act of the Brussels
^ Pari. Papers, Misc., No. 4 ' See above, § 292.
(1915). * See Martens, N.R.Q., 2nd Ser.
^ Treaty of Peaoe with Germany, xvi. p. 3, and Treaty Ser. (1892),
Article 295 ; with Austria, Article No. 7.
247 ; with Bulgaria, Article 174. ' See above, § 468.
UNIONS CONCERNING NON-POLITICAL INTERESTS 767
Conference was repealed as between the parties to a
new convention, signed at St. Germain on September
10, 1919, which, while containing an undertaking by
them to secure the complete suppression of slavery,
and of the slave trade by land and sea, does not provide
for the continuance of the machinery established by
the Brussels Greneral Act.^
(2) On May 18, 1904, an agreement for the suppres-
sion of the white slave traffic ^ was signed at Paris by
Great Britain, Germany, Belgium, Denmark, Spain,
France, Italy, Holland, Portugal, Russia, and Sweden-
Norway. Other States acceded later. A further agree-
ment concerning the subject was signed at Paris on
May 4, 1910,^ by thirteen States. These conventions are,
according to the Treaties of Peace, to be again applied
as between the parties to them without modification,
and Bulgaria is to accede.*
(3) On December 21, 1904, a large number of States
signed at the Hague a convention for the exemption of
hospital ships from harbour dues. Great Britain was not
a party to this convention.^ By the Treaties of Peace
this convention is to be again appHed without modifi-
cation, as between the parties to it, and Bulgaria is to
accede.*
(4) On May 4, 1910, an agreement for the suppression
of obscene publications ® was signed at Paris by Great
Britain, Germany, Austria-Hungary, Belgium, Brazil,
Denmark, Spain, the United States of America, France,
Italy, Holland, Portugal, Eussia, and Switzerland.
' See above, § 564. ' See Treaty of Peace with Ger-
' See Martens, iV. 22. 6., 2nd Ser. many, Article 282; with Austria,
xxxii. p. 160, and Treaty Ser. (1905), Article 234; with Bulgaria, Article
No. 24. See also Butz, Die Bekam- 167.
p/ung de8 Madchmhandels mi inter- , g^^ ^ ^^ ^ ^^^^^ p
nattoncUen Rechte (1908) ; Rehm in „„„;,•; _ roj.
Z.V., i. (1907), pp. 446-453. ''°^"'- P' ^^•
' See Martens, N.R.G., 3rd Ser. » See Martens, N.B.G., 3rd Ser.
vii. p. 252. and Treaty Ser. (1912), vii. p. 266, and Treaty Ser. (1911),
No. 20. No. 11.
768 mPOETANT GROUPS OF TREATIES
Other States acceded later. This convention is, by
the Treaties of Peace, to be again appUed between the
parties to it, Bulgaria acceding.^
Preserva- § 593. The foUowing general treaties have been
A^mai concluded for the purpose of preserving certain animals
World, in certain parts of the world : —
(1) In behalf of the preservation of wild animals,
birds, and fish in Africa, the Convention of London ^
was signed on May 19, 1900, by Great Britain, the
Congo Free State, France, Germany, Italy, Portugal,
and Spain ; Liberia acceded later. However, this
convention has not yet been ratified, and as it is not
referred to in the Treaties of Peace, it may probably
be regarded as unhkely to secure ratification.^
(2) In behalf of the prevention of the extinction of
the seals and sea-otters in the North Pacific Ocean,
the Pelagic SeaUng Convention * of Washington was
signed on July 7, 1911, by Great Britain, the United
States of America, Japan, and Russia. This conven-
tion is unafiected by the proceedings at the Peace
Conference at Paris, because none of the Central Powers
are parties to it.
Private S 594. Various general treaties have been concluded
Inter- .
national for the purpose of estabhshing uniform rules concerning
subjects of the so-called Private International Law : —
(1) On November 14, 1896, a general treaty concerning
the couflict of laws relative to procedure in civil cases
was concluded at the Hague. But this treaty was
replaced by the Convention ^ of the Hague of July 17,
* See Treaty of Peace with Ger- Ser. (1917), No. 7). A convention
many, Article 282 ; with Austria, was signed at Sophia between Bui-
Article 234 ; with Bulgaria, Article garia and Roumania on November
167. 29, 1901, regarding fishing in the
' See Martens, y.R.G., 2nd Ser. Danube (see Martens, N.R.G., 2nd
XXX. p. 430. Ser. xxxiii. p. 277, and Treaty of
' A convention for the protection Peace with Bulgaria, Article 165).
of migratory birds was signed at , g ^-^^ g ^^
Washington on August 16, 1916,
between Great Britain (for Canada) " See Martens, N.R.6., 3rd Ser.
and the United States (see Treaty ii. p. 243.
Law.
UNIONS CONCERNING NON-POLITICAL INTERESTS 769
1905, whicli was signed by Grermany, Austria-Hungary,
Belgium, Denmark, Spain, France, Italy, Luxemburg,
Norway, Holland, Portugal, Roimiania, Russia, Sweden,
and Switzerland.
(2) On June 12, 1902, likewise at the Hague, were
signed three conventions * for the purpose of regulating
the conflict of laws concerning marriage, divorce, and
guardianship. The signatory Powers were Germany,
Austria-Hungary, Belgium, Spain, France, Italy, Lux-
emburg, Holland, Portugal, Roumania, Sweden, and
Switzerland.
(3) Again at the Hague, on July 17, 1905, were signed
two conventions for the purpose of regulating the
conflict of laws concerning the effect of marriage upon
the personal relations and the property of husband
and wife, and concerning the placing of adults under
guardians or curators. The signatory Powers were
Grermany, France, Italy, Holland, Portugal, Roumania,
and Sweden.^
It would appear from the Treaties of Peace that only
two of these conventions are to be again appUed, namely,
the Civil Procedure Convention of Jvdy 17, 1905, and
the convention for the protection of minors of June 12,
1902 ; moreover, France, Portugal, and Romnania do
not intend to apply the Civil Procediire Convention
for the future.^
§ 595. The first Pan-American Conference held at American
Washington in 1889 created the International Union ^ ^bUes.
of the American RepubUcs for prompt collection and
distribution of commercial information.^ This Union
• See Martens, N.R.O., 2nd Ser. many, Articles 282, 287 ; with
xxxi. pp. 706, 715, 724. Austria, Ari;ioles 234, 238.
' Meili and Mamelok, Daswier- , ^^^ ^ ^^ ^^ unaffected by
nahorude Pnvat- und Zvvd^azet- ^^^ proceedings of the Peace Con
eionen (1911), offers a digest of all
the Hague Conventions concerned. " See Barrett, The Pan-American
• See Treaty of Peace with Ger- Union, (1911).
VOL. I. 3C
770 IMPOBTANT GROUPS OP TREATIES
of the twenty-one independent States of America
established an international office at Washington,
called at first ' The American International Bureau,'
but the fourth Pan-American Conference, held at
Buenos Ayres in 1910, changed the name of the office ^
to ' The Pan-American Union/ At the same time,
this conference considerably extended ^ the scope of
the task of this bureau, so as to include, besides other
objects, the function of a permanent commission of the
Pan-American Conferences, which has to keep the
archives, to assist in obtaining the ratification of the
resolutions and conventions adopted, to study or
initiate projects to be included in the programme of
the conferences, to communicate them to the several
Governments, and to formulate the programme and
regulations of each successive conference.
Science. § 596. In the interest of scientific research the follow-
ing Unions^ had been estabUshed before the World
War, but they are not mentioned in the Treaties of
Peace among the treaties of an economic or technical
character which are to be again appUed as between the
parties thereto, either because the conventions creating
them had never been officially published, or because
there was no desire to bring them into operation again,*
(1) On October 30, 1886, Great Britain, Germany,
Argentma, Austria-Hungary, Belgium, Denmark, Spain,
the United States of America, France, Greece, Italy,
Japan, Mexico, Norway, Holland, Portugal, Roumania,
Russia, Sweden, and Switzerland signed a convention
at Berlin for the purpose of creating an International
• See above, § 467a. dates and foots mentioned in the
' See Reinsch, Ptiblic International text are based on private inf orma-
Unions (1911), p. 117. tion and such information as can
• The conventions which have be gathered from the Arniuaire de
created these Unions would seem to la Vie irUematUmaie (1908-1909),
be nowhere officially published, and pp. 389-401.
are, therefore, not to be found in the * The editor has been unable to
Treaty Series or in Martens. The find any information on this point.
tTNIONS CONCERNING NON-POLITlCAI. INTERESTS 771
Greodetic Association. As early as 1864 a number of
States had entered at Berlin into an association con-
cerniag geodetic work in Central Europe, and in 1867
the scope of the association was expanded to the whole
of Europe ; but it was not until 1886 that the geodetic
work of the whole world was made the object of the
Greodetic Association. The convention of 1886, however,
was revised, and a new convention was signed at Berlin
on October 11, 1895.^ The association, which before
the World War arranged an international conference
every three years, possessed a central ofi&ce at Berlin.
(2) On July 28, 1903, was signed at Strasburg a
convention for the purpose of creating an International
Seismologic Association. This convention was revised
on August 15, 1905, at Berlin.^ The following States
were parties : Great Britain, Germany, Austria-Hungary,
Belgium, Bulgaria, Canada, Chili, Spain, the United
States of America, France, Greece, Italy, Japan, Mexico,
Norway, Holland, Portugal, Roumania, Russia, Serbia,
and Switzerland. The association, which before the
World War arranged an international conference at least
once in every four years, had a central office at
Strasburg.
(3) On May 11, 1901, a convention was signed at
Christiania for the International Hydrographic and
Biologic Investigation of the North Sea.^ The parties
were Great Britain, Germany, Belgiimi, Denmark,
Holland, Norway, Russia, and Sweden. The associa-
tion established a central office.
' For the text of this convention, predecessor of 1903 is published
see Annnaire de la Vie intemcUionale there on p. 393.
(1908-1909), p. 390.
' The text of this convention ia ' For the text of this convention,
not published in the Annuaire de la see Annuaire de la Vie intematiotiah
Vie tntenvUiomUe (1908-1909), but its (1908-1909), p. 397.
INDEX
Abandoned liver-beds, 393
Abdicated monarchs, 534
Absorption of a State, 146
Abuse of flag, 429
Abyssinia :
independence of, 81, 169, 181
international position of, 35
Accession to treaties, 684
Accretion of territory :
abandoned river-beds, 393
alluvions, 392
artificial formations, 391
conception of, 390
deltas, 392
different kinds of, 391
new-bom islands, 393
Acosta, Luis Gestoso y, 113
Acquisition of territory, 372-375
Ada-KaU:
annexation by Austria, 395
international position of, 309
Adhesion to treaties, 685
Aegi, case of, 603
Aerial navigation, 353-359
Aerial Navigation Acts, 354
CSvil Aerial Transport Committee,
354
Germany and International Con-
vention, 724
Institate of International Law,
mles, 353
International Commission estab-
lished, 358
International Convention, 92, 355-
359, 624, 715
accession to, 359
withdrawal from, 359
Paris Conference of 1910, 353
territorial atmosphere, 312, 353
Afghanistan, independence of, 81
Africa:
German rights renounced, 721
notification of future occupations
on the coast of, 386, 709
preservation of wild animals in, 85,
768
spirit trade in, 710
states of, 190
Agadir, German action at, 81
Agent, appointment of, 595
consular, 592
diplomatic or consular character,
lacking in, 617
Agesntt provocateura, 618
AgrAUion, 554
Agriculture, convention for preserva-
tion of birds useful to, 85, 761
International Institute of, 85, 628,
760
Aircraft. See Aerial navigation
Aix-la-ChapeUe :
Congress of (1818), 72, 706
Peace treaty of (1668), 66 ; (1748),
68, 212
Aland Islands, 368, 679
Alaska boundary dispute, 363, 412
Albania, future position of, 36, 188
independence of, 83
Albin, 119
Alcazar, case of, 256
Alcorta, Amancio, 112
Alexander U. of Russia, assassination
of, 517, 518, 521
Alexander VI., Pope, 408
Alexandria, International Court ol
Appeal at, 606
Algeciras, International Conference
of, 80, 81
German renunciation of benefits
under, 721
Algeria, trade between France and,
748
Aliens :
Act, 1905, 489
British Nationality and Status of
Aliens Act, 1914, 424, 469, 471,
475-481
departure of, from the foreign
country, 497
expulsion of, 258, 498-502
home State's protection of, 494
jurisdiction over, in ^Eastern coun-
tries, 493
naturalisation of, 209, 469, 474-
481
protection to be afforded to, 495
reception of, 488, 490
reconduction of, 501
7T3
774
INTERNATIONAL LAW
Aliens {continued) —
registration of, 496
Restriotion Acts, 1914 and 1919,
496
right of asylum of, 490
subjected to territorial supremacy,
207, 492
treatment of, according to discre-
tion, 496
Alliances :
catitsfcederis, 737
conception of, 733
conditions of, 736
different kinds of, 735
League of Nations distinguished
from, 268
parties to, 735
Alluvion, 391, 392
Almeida, Jos6 Augusto Moreira de,
113
Alsace, 382
restored to France, 720
' Alternat ' clause, the, 201
Amakouron, river, 320
Amalfi, maritime laws of, 59
Ambassadors, 60, 547. See alio Diplo-
matic envoys
Amelia Island, case of the, 217
American International Bureau. iSee
Pan-American Union
Ammunition. See Arms and Am-
munition
Amos, Sheldon, 109
Andorra, international position of,
167, 189
Anglo-French Agreement (1904), 80,
368
Anna, case of the, 393
Annexation, 395
Anti-Slavery Conference at Brussels,
429, 462, 627, 674, 710
Antivari, port of, 82, 420
Antoninus Pius, 407
Anzilotti, 121
Apocritiarii, 540
Aral, Sea of, 413
Arbitration. See alio International
Court of Arbitration ; League of
Nations :
Alaska Boundary, 363, 412
Behring Sea Seal Fisheries, 341,
412, 444
Casa Blanoa, 610
Costa Rica Packet, 254
Delagoa Bay, 406
North Atlantic Coast Fisheries,
343, 348, 365, 368, 369
Savarkar, 510
Argentina, boundary treaty with,
349, 679, 712
Armed forces :
capture of, 608
crimes by, 608
exterritoriality of, 610
foreign territory occupied by, 607
Peace Treaty restrictions on, 212
status, 607
Armed neutrality, first (1780), 69
Armenia, Erivan republic of, 191
mandatory guardianship of, 288
Arms and ammunition. See aXio Dum-
dum bullets ; Projectiles conven-
tion respecting trade 'in, 628, 715
Army of Occupation :
Allied, in Germany, 725
jurisdiction of, 611
Art, Union for the protection of works
of, 626, 757
Artificial boundaries, 360
Artificial formation of territory, 391
Asiatic States, 191
Asylum, right of, 490, 564, 565
men-of-war and other vessels' abuse
of, 615
Atmosphere, territorial, 312, 353
Attachie of Legation, 577
Attentat clause, the Belgian, 516, 522
Attualita, case of the, 614
Avbaine, droit d', 497
Austin, 3, 114
Australia, maritime flag of, 420
Austria :
responsibility for debts under
Peace Treaty, 150
seat of legation confiscated, 566
Austria-Hungary :
dismemberment of, 150
union of, 155
union of, dissolved, 36, 151, 155,
720
Austrian Peace Treaty, 92, 93, 150,
368
language of text of, 704
provisions of, 726-727
signatories to, 725
Authentic interpretation, 700
Aviation. See Aerial navigation
Avvleio, 392
Ayala, 99, 101
Azerbaijan, recognition of, 191
Azoff, Sea of, 413
Azuni, 412
B
Baker, Sir Sherston, 110
Balance of power, 68, 69, 70, 93, 141
intervention in interests of, 228,
380
Balkan War, 228
INDEX
775
Baltio, command of, 368, 721
mamtenance of statut quo in, 743
Swedish sovereignly over, 408
Bancroft treaties, 487
Barbeyrac, 105
Barima, river, 320
Bass, case of De, 562
Batonm, 651, 693, 697
Bavaria, right of legation in, 544
Bays, 342-346
Cancale, 343
Chaleurs, 343
Chesapeake, 343
Conception, 343
Delaware, 343
Hudson, 343
Jade, 344
Miramichi, 343
Stettin, 344
Vaianger Fiord, 343
Znider Zee, 344
Beaters of despatches, 619
Beokert, case of, 579
Behring Sea Award Act (1894), 445
Behring Sea conflict between Great
Britain and United States, 341,
412,444
Belgium, independence of, 73, 404
neutralisation of, 173, 176, 706
neutralisation rescinded, 177
neutrality violated, 177, 220
Belle-Isle, case of Marshal de, 575
Belli, 99
Bello, Andres, 112
Bentham, 2, 37, 104
Berlin:
Congo Conference of (1884-85), 35,
77, 178, 317, 319, 386, 462, 649,
708
Congress of (1878), 76, 136, 228,
363, 462, 622
Decrees of, 70
International Radiotelegraphie
Convention (1906), 755
Treaty of (1878), 76, 82, 151, 212,
213, 420, 458, 708
Bernard, 118
Berne Convention, 78, 628, 756
Berne, International Telegraph Office,
78, 450, 626, 755
Bemsdorff, Count, case of, 576
Bevilaqua C!lovis, 113
Bill of lading, 424
Biologic investigation of the North
Sea, 85, 771
Birds:
African, preservation of, 85, 768
migratory, protection of , 768
useful to agriculture, convention
for the preservation of, 85, 761
Birkenhead, Lord. See Smith, F. E.
Birth, acquisition of nationality by,
468
Black Sea, 324, 350, 351, 414
neutralisation of, 76, 325, 417, 692
Blockade, 68, 250, 428
of Venezuela, 79
BlttntscUi, Johann Caspar, 38, 111,
115, 316
Bodin, 129, 130
Bombardments, convention concern-
ing, 714
Bon, Antonio del, 112
Bonfils, Henry, 111, 117
Bomemann, Frederick Kristian, 113
Bosnia and Herzegovina, annexation
by Austria, 395, 693
international position of, 76, 309
Bosphorus and Dardanelles, 324, 325,
349, 350, 413
international commission of con-
trol, 621
open to aU nations after world
war, 352
Boundaries of State territory, 360-364
Boundary:
Argentina and C^Ii treaty, 349,
679, 712
Commissions, 363
disputes, 362, 388
Great Britain and United States
treaty, 363
Great Britain and Venezuela dis-
pute, 233, 320
Louisiana, 387
mountains, 362
Oregon, 387
waters, 313, 321, 361
Bounties on sugar, convention con-
cerning, 624, 759
Boy-Ed, Captain, case of, 583
Brazil, international position of, 72 n,
77,404
Breda, Peace Treaty of, 67
Brest Litovsk, Peace Treaty of, 90,
721
Bristol Channel, 348
British Dominions. See Dominions
British Nationality and Status of
Aliens Act, 1914, 424, 469, 471,
475-481
British seas, 409, 411
Brooke, Sir James, sovereign of
Sarawak, 373
Brunus, 99
Brussels:
Anti-Slavery Conference of, 429,
462, 627, 674, 710
abrogation of general act of, 710
Conference of (1874), 39, 76
778
INTERNATIONAL LAW
Convtniio ommis intdligitur rebus sic
ttuTUibui, 689
Co-operation, 222
Copenhagen :
Peace Treaty of, 67
Treaty (1857) abolishing Sound
dues, 350
Copyright :
Acts concerning, 758
Union eonoeming, 78, 626, 757
Corinth Canal, 326
Corporations, nationality of, 463
Corps, diplomatic, 548
Corsica, pledged by Genoa to France,
310, 379
Costa Kica Packet, case of the, 254
Councillors of Legation, 577
Couriers, 577, 578, 580. See also
Retinue of envoy
Oourland merged in Russia, 143,
378
Court of Arbitration. See Interna-
tional Court of Arbitration
Cracow, republic of, 71, 168, 175
Creasy, Sir Edward Shepherd, 109
Credence, letter of, 550, 582, 584,
585
Crete:
ceded to Greece, 83
international position of, 77
Crews of men-of-war, their position
when on land abroad, 616
Crime, extraditable, Jee Extraditable
crimes ; Political crime
Crimean war, 73
Cromwell, 201, 562
Cruc6, Emeric, 62
Cruchaga, Miguel, 113
Cuba :
debt of, 152
independence of, 77, 210, 404, 738
intervention in, 224
Oulte, droit du, 571
Cumberland, Duke of (1837), 535
Oussy, 118
Custom, as source of International
Law, 16, 21, 22
distinguished from usage, 21
Custom tariffs. Union for publication
of, 78, 627, 758
Customary law, 3, 4
Customs Laws Consolidation Act,
747
Cutting, case of, 241
C!yprus, annexed by Great Britain.
88, 395
international position of, 309
Cyrenaica, annexation of, by Italy,
397
ceded to Italy, 83
Czecho-Slovakia, 36, 368
independence of, 720, 726
trea^ between Allied Powers and,
728
D
Danish fleet, case of, 217
Danube, fishing in, 768
navigation on the, 77, 317, 318, 621
Danzig, international position of, 167,
189, 720
DardaneUes, 324, 325, 349, 350, 413
International Commission of con-
trol, 621
open to all nations after world war,
352
Davis, George B., 110
De Bass, case of, 562
De Clercq, 119
Dr facto subjects, 466
De Recuperaiione Terre Sancte, 61
Dead Sea, 413
Debts. iSiee aZso Contract debts
guarantee treaties and, 738
liability of the succeeding State,
148, ISO
Declaration :
Brussels, 39
London, 42, 85, 88, 650, 675, 703,
715
Paris, 3, 10, 74, 649
St. Petersburg, 75, 649
'Declaration of the Rights and
Duties of Nations,' 193
Declarations, 665
three kinds of, 649
Delagoa Bay, case of, 406
Delaware, Bay of, 343
Delinquency, international, 245
Delits complexes, 516
Delta, 391, 392
' Deniers of the Law of Nations,' 104
Denization, 383, 480
Denmark, 216
sovereignty over the Baltic, 408
Deposed monarchs, 534
Deprivation, loss of nationality
through, 472
Derby, Lord, 740
Dereliction of territory, 405
Deserters not to be extradited, 509
Despagnet, Frantz, 111, 117
Despatches, bearers of, 619
transmission through belligerents'
lines, 576
IMtraction, droit de, 497
Diena, Giulio, 112, 117
Dignity of States, 203-206
INDEX
779
Diplomacy, 541
language of, 541
Diplomatic corps, 548
Diplomatic envoys, 539-587. <See also
Ambassadors; Charged' Affaires;
Consuls ; Legation ; Ministers
Plenipotentiary ; Ministers Resi-
dent
appointment of, 549-551
ceremonial and poUtioal, 545
classes of, 71, 545-581, 706
constitutional changes affecting,
585
death of, 586
dismissal through delivery of pass-
ports, 558, 584
doyen of, 548
exempt from criminal and civil
jurisdiction, 561, 568
exempt from police regulations,
570
exempt from subpoena as witnesses,
569
exempt from taxes, 571
exterritoriality of, 563-573
family of, 580
found on enemy territory by a
belligerent, 576
functions of, 556
immunity of domicile of, 564, 566
injurious acts of, 252
interference in internal politics by,
-not permitted, 558
interference with affairs of third
States by, 577
inviolability of, 560-563
negotiation by, 556, 643
official papers of, 550, 561, 584, 586
position of, 559
privileges of, 559
promotion of, 584
qualifications of, 549
recall of, 582
reception of, 552-556
refusal to receive certain individuals
as, 553
request for, and delivery of, pass-
ports, 584
retinue of, 577-581
revolutionary changes affecting, 585
right of asylum of, 564
right of chapel of, 571
right of passage of, 574
self-jurisdiction of, 572
servants of, 579
status of, 553
suspension of mission of, 581
temporary, 553, 556
termination of mission of, 581-587
travelling through third States, 574
Diplomatic usages, 541
Discovery, inchoate title of, 385
Discretion of States :
admission of aliens, 488
appointment of envoys, 542
expulsion of aliens, 499
extradition treaties, 506
protection of their citizens abroad,
494
recognition of new heads of States,
528
Dissolution of treaties :
distinguished from fulfilment, 686
through mutual consent, 687
through vital change of circum-
stances, 688
through withdrawal by notice, 687
Dogger Bank, case of the, 256
Domicile =
envoys, immimity of, 564, 566
naturalisation by, 470, 475
Dominions, self-governing :
former position of, 169
maritime flags of, 420
members of League of Nations, 170
naturalisation in, 480
present position of, 170-171
relationship between Great Britain
and, 170, 307
represented at Paris peace confer-
ence, 642
treaty-making powers of, 658
Domin-PetruBch6veoz, 38
Doyen of the diplomatic corps, 548
Drago doctrine, 226
Drake, voyage to the Pacific, 410
Dubois, case of, 569
Dubois, Pierre, 61
Dumba, Dr., the case of, 576, 583
Dum-dum bullets, 712
Dumont, 118
Dunkirk, fortification of, 212, 701
Duplessix, E., 39
E
Eastern countries :
consuls in, 605
protection of individuals in, 466,
493
Eastern Bumelia, 76
Effect of treaties :
how affected by changes in govern-
ment, 678
upon the parties, 677
upon the subjects of the parties,
677
upon third States, 678
Effective occupation. See Occupation
780
INTERNATIONAL LAW
British Protectorate over, 88, 165,
168, 328, 606, 722
international position of, 163
international courts in, 605
possesses no right of legation,
543
Elbe, river, 318, 320, 623
Elizabeth, Queen, 410, 562
Emigration, 467
loss of nationality through, 472
England. See United Kingdom
Enemy goods covered by neutral flag,
706
Enqv^te, droit d', 428
Envoys. See Diplomatic envoys
Envoys extraordinary, 547
Equality of States,' 19, 195, 196
Equilibrium. jSee Balance of power
Erie, Lake, 323, 324
Estate duty, 497
Esthonia, international position of,
36
Etape, droit d', 369
European Concert, 198
European Danube Commission, 621
Exchange of State territory, 379
Exclusion of aliens in the discretion
of every State, 488
Exequatur :
requisite for consuls, 595, 600, 603
revoked, 528
Expiration of treaties :
distinguished from fulfilment, 686
through expiration of time, 686
through resolutive condition, 687
Expulsion of aliens, 258
causes of, 499
discretion of State in, 499
Great Britain, 498
method of effecting, 501
reconduction distinguished from,
501
Switzerland, 498
Exterritoriality, 563
consuls in non-Christian States,
604
diplomatic envoys and the members
of their suite, 563-573
men-of-war in foreign waters, 614
monarohs and the members of their
suite, 531, 532, 533
presidents of republics, 536
wife of a monarch, 532, 533
Extinction of States, 143
effect on diplomatic missions, 586
Extraditable crimes, 508
Extradition :
Belgian attentat clause, 516
conception of, 503
Extradition {continued) —
condition of, 509
deserters, 509
effectuation of, 509
granting of, 503, 508
Jacquin case, 516
Lamirande case, 511
municipal laws concerning, 505
Nillins case, 507
object of, 506
Paladini, Salvatore, case of, 507
political criminals, 509, 512-523
Russian project, 517
Savarkar case, 510
Swiss project, 517
Tourville case, 506
treaties of, 503-504, 523
Extradition Acts, British, 505, 508,
509
F
Family of Nations. See also League
of Nations
conditions of membership of, 32,
135, 192
definition of, 10
position of Dominions in, 170
position of States in the, 18, 162,
188, 192-196
Faroe Island Fisheries, 446
Fauohille, 111, 120
Faucigny, 370, 377
Federal States, 153, 157, 160, 198,
311
appointment of envoys by, 158, 544
appointment of consuls by, 595
conclusion of treaties by, 656
Federalist, the, 133, 157
Feltner, H., 113
Female consuls, 594
Female diplomatic envoys, 549
Ferguson, Jan Helenus, 113
Fetialee, 54
Field, David Dudley, 38, 402
Final Act of a Congress, 648
Finance Act (1894), 497
Finland, independence of, 36
Fiore, Pasquale, 39, 112, 115
Firearms. See Arms and ammunition
Fish in Africa, preservation of, 768
Fisheries ;
Behring Sea Seal, 341, 412, 444
Faroe Islands, 446
gulfs and bays, 346
Iceland, 441, 446
maritime belt, 336
Moray Firth, 345
Newfoundland, 368
INDEX
781
Fiflheries (.continued) —
North Atlantic Coast, 343, 348,
365, 368, 369
North Pacific Seal, 446
North Sea, 408, 429, 442
open sea, 441-446
pearl, off Ceylon, 441
prohibited areas, 346
Scottish herring, 345, 346
servitudes, 368
straits, 348
White Sea, 441
Fishery Commissions, 621
Fitzmaurice, Lord, 342
Flag:
abuse of, on the part of vessels, 429
British Dominions, 420
claims of States to maritime, 418,
419
claims of vessels to sail under a
certain, 416, 421, 422
commercial, 419
customary rules concerning, 416,
428
enemy goods covered by neutral,
706
special, for bumboats, 444
verification of, 428, 430
Fleischman, 121
Force majeure, 632
Foreign Jurisdiction Act (1890), 494,
605
Foreign Offices, 537-538
Foreigner. See Aliens
Forerunners of Grotius, 98
France, codification of international
law in, 37
constitution of, 512
convention, 37, 69
revolution in, 69, 512
treaties for defence of, 734
treaty-making power of President,
659
Franchise de VhOtel, 564
du guartier, 564
Franconia, case of the, 30
Frankfort :
Peace Treaty of, 382
subjugation of, 396
Frederick III., Emperor of Germany,
58, 408
Frederick William of Brandenburg,
668
Freedom of action necessary for con-
sent to treaties, 660
Freedom of the sea, 367
ceremonials, 418
controversy regarding, 59
maritime fiags and, 418
meaning of the term, 415
Freedom of the sea [continued) —
rationale for, 420
recognition of, 236, 412
rise and growth of, 407-412
Fugitive Offenders Act (1881), 506
Full powers, 550, 657
Funck-Brentano, 110
Fundamental rights of States, 192
G
Oabella emigrationis, 497
Gallatin, case of the coachman of Mr. ,
579
Gareis, Karl, 111, 145
Garfield, President, murder of, 570
General Act of a Congress, 648
Geneva Convention, 17, 75, 84, 175,
707
Convention for its adaptation to
Naval War, 40, 41, 79, 714
Geneva, Lake of, 323
Genoa, her sovereignty over the
Ligurian Sea, 408
Gentilis, 99, 101, 410
Geodetic Association, International,
770
George L, 563
Georgia, recognition of, 191
German Peace Treaty, 91, 93, 151,
319, 368
Commissions in connection with,
620, 723
language of text of, 542, 704
provisions of, 719-725
ratification of, 719
signatories to, 718
Germany, army of occupation in, 725
competent to conclude treaties, 656
mandatory guardianship of posses-
sions, 288
member-States of, 158, 159
recognised as independent, 66, 70
treaty-making power of President,
659
Ghillany, 118
Gibraltar, 369
proposed tunnel, 453
Good offices, 222, 684
Gore, American Commissioner, 621
Orand cabotage, 746
Great Belt, the, 347
Great Britain. See United Kingdom
Great Powers, 2, 188, 199
hegemony of, 198 .
position of, in League of Nations,
292, 293
Greece, independence of, 73, 404, 738
intervention in World War, 90, 225
rules for international relations, 52
782
INTERNATIONAL LAW
Gr6goire, AbW, 38
Grey, Viscount, 740
Grotians, the, 107
Grotins, Hugo, 2, 16, 63, 98, 100, 316,
374, 400, 410, 420
permanent legations considered by,
540
right of asylnm questioned, 564
Guarantee as a means of securing the
performance of treaties, 683
Guarantee of government or dynasty,
226
Guarantee, treaties of, 738
eoUeetive, 740
conception of, 738
effect of, 739
pseudo-guarantees, 741-743
Gu^briant, Madame de, 549
Gnitean, tri^ of, 570
Gulfs, 342-346
Gulistan, Treaty of, 324
Gumey, case of, 578
Gyllenburg, case of, 563
Haggerty, case of, 596
Hague:
Convention (1899), commissions of
inquiry appointed, 620
Convention concerning conversion
of merchant ships into war ships,
613
Convention (1882), concerning fish-
eries in the North Sea, 346, 348,
442
Convention concerning laws and
usages of war, 40, 41, 665, 704
Convention (1887), coneeming
Liquor TrafSc on the North Sea,
443
Conventions (1907), 227, 243, 250,
620, 650
International Court of Arbitration
at the, 10, 86, 96, 629-633
Peace Conference (1899), 40, 78,
711
Peace Conference (1907), 40, 41,
84, 630, 712
Haiti, entrance into Family of Na-
tions, 33
independence of, 738
independence restricted, 211
Half sovereign States, 161, 189
diplomatic representation not al-
lowed to, 543
parties to international congresses,
647
state servitudes and, 367
treaties concluded by, 656
HaU, WiUiam Edward, 109, 116,
348
Halleok, Henry W., 110, 115
Hamilton, A., 133
Hankow, German concession of, 310,
721
Hanover :
King of, 535, 553
subjugation of, 396, 398
Hanseatic League, 60
Hartmann, Adolph, 111, 116
Havana, Treaty of, 210, ^24
Hay-Pauncefote Treaty, 330, 672,
674, 679, 712
Hay-Varilla Treaty, 211, 331, 679
Heads of States, 527-537
assEkSsination of , 51 8
competence of, 529
honours and privileges of, 530
injurious acts of, 251
legitimate, 528, 529
objects of Law of Nations, 530
position of, 530
predicates of, 203
privileges of, 530
recognition of new, 528
right of legation, 544
titles of, 202
treaty-making power of, 657
usurping, 529
Health Office, International, 628
Hedjaz, the, 36
Heffter, August Wilhelm, 111, 115,
403
Hetnrichs, Herr von, case of, 575
Heligoland, cession to Giermany, 306
fortifications of, to be destroyed,
721
international position of, 368
Henry IV. of France, 62
Herring Fishery (Scotland) Act, 345
Hershey, Amos S., 110, 118, 348
Hertslet, 119
Herzegovina, annexation by Austria,
395
international position of, 693
Hesse-Oassel, subjugation of, 396
Hinterland, 389
Hobbes, 3, 104, 130
Hohenzollem - Sigmaringen and Hoh-
enzollem - Hechingen, merged
into Prussia, 143
HoUand, Professor, 99
Holland, shipping requisitioned in
World War, 90
Holtzendorf^ Franz von, 111, 116
Holy AUiance, 71, 72, 73, 657,
733
Holy Roman Empire, origin of doc-
trine of servitudes in the, 366
INDEX
783
Holy See, 181-188
international position of, 184, 187,
201, 543
receives ambassadors of first class,
547
right of legation, 543
violation of, 187
Hospital ships, exemption from har-
bour dues, 767
Hostages as a means of securing the
performance of treaties, 682
Hostilities :
convention relative to the opening
of, 713
status of merchantmen, at out-
break of, 713
Hovering Acts, 340
Huascar, the, 435
Hubertsburg, Peace Treaty of, 68
Hudson Bay, 343
Huerta, President, 528
Humanity, intervention in the inter-
ests of, 229
Unions in the interest of, 766
Humbert of Italy, assassination of
King, 518, 521
Hungary. See aiso Austria-Hungary,
Peace Treaty with, 93
Hiiningen, 370
Huron, Lake of, 323, 324
Hutcheson, 105
Hydrographic investigation of the
North Sea, 85, 771
Iceland, fisheries around, 441, 446
international position of, 167
Illegal obligations, 663
Immoral obligations, 662
Immunity of domicile, 564, 566
Indemnities, 215
Independence of States :
consequences of, 207
definition of, 206
restrictions upon, 209
violations of, 208
Indian vassal States of Great Britain,
163
Indians, Red, 37
' Indigenousness,' international, 461
Individuals :
never subjects of international
law, 18, 457
objects of international law, 456,
460
stateless, 461, 484
Industrial property, union for pro-
tection of, 78, 626, 758
Informing gun, the, 430
Inquiry, international commissions
of, 620
Institute of International Law, the,
38, 39, 40, 120
aerial navigation rules, 353
riglement concerning acts of in-
surgents, 262
riglement concerning consuls, 601
riglement concerning men-of-war in
foreign ports, 615
rules concerning aliens, 500
rules concerning double and absent
nationality, 487
rules concerning extradition, 509,
518
rules concerning immunities of
diplomatic envoys, 560, 563
Suez Canal proposals, 327
vdux concerning emigrants, 467
Instructions of diplomatic envoys,
551
Insurgents, public political agents of,
617
recognised as a belligerent Power,
126, 137
riglement of the Institute of Inter-
national Law concerning acts of,
262
right of legation not possessed by,
545
rioters treated as, 260
Integrate territory, 306
Intercession, 222
Intercourse of States, 192, 195, 235-
237, 421
International Arbitration. See Arbi-
tration; International Coiirt of
Arbitration
International Code of Signals, 425,
426
International Commission concerning
sugar, 624
International Commission of the pro-
posed Channel Timnel, memo-
randum respecting, 453
International Commissions, 620-625
in the interest of foreign creditors,
624
of Inquiry, 620
International Council of Sanitation
at Bucharest, 624
International Court of Arbitration
at the Hague, 10, 96, 631
awards of, 86, 632-633
Bureau of, 630
deciding Tribunal of, 631
expenses of, 630
members of, 631
organisation of, 629
784
INTERNATIONAL LAW
International Court of Arbitration
at the Hague (continiud) —
Permanent Council of, 630
Permanent Court suggested in 1305
by Pierre Dubois, 61
seat of, 632
International Court of Justice, pro-
posed, 635
League of Nations plans for, 278,
298, 637
International Courts in Egypt, 605
International crimes, 246
International delinquencies, 245
International disputes, convention
for the settlement of. See Hague
Peace Conferences
International Health Ofl&ce, 628
International Institute of Agri-
culture. See Agriculture
International Jurists, schools of, 96,
104
International Labour Office, 279, 288,
729
complaints to, 731, 732
control of, 624-730
formation of, 628
functions of, 731
general conference of, 730, 732
International Law :
basis of, 14
basis of international relations, 72
bibliographies, 120
codification of, 37, 96
comity of nations and, 24
' common consent ' in, 15
conflicts between municipal law
and, 29
crime against, 246
definition of, 1, 3, 10
development of, 48-121
dominion of, 31
distinguished from municipal law,
11, 25
enforcement of, 11
factors influencing the growth of,
23
government's attitude towards, 65
legal force of, 3, 12
origin of, 2, 16, 19
periodicals relating to, 120-121
position of individuals in, 456-523
States as subjeots of, 17, 125, 243
treaties relating to, 109-114
violations of, 13, 17, 66, 87, 225
International Law Association, the,
39
International offices. See also Inter-
national Labour Office, 626-629
agriculture, 628
arms and ammunition, 628
International offices {continued) —
' Bureau Special ' at Brussels, 627
customs tariffs, 627
health, 628
industrial property, 626
liquor traffic, 629
maritime office at Zanzibar, 627
Pan-American Union, 627
post, 626
sugar, 627
telegraphs, 626
transports, 627
weights and measures, 626
works of literature and art, 626
International personality, 192-196
definition of, 194
League of Nations and, 125
violations of, 195
International persons, 125, 126, 134,
140, 143, 144, 153
International Prize Court, proposed,
41, 634
convention concerning, 714
International Badiographic Conven-
tions, 312, 448, 755
International Telegraph Union, 450,
626,755
International transactions. iSee Trans-
actions
Intemoscia, Jerome, 40
Internuncios, 547
Interpretation of treaties, 700-704
Intervention, 72, 73, 138, 221, 299
admissibility in default of right,
227
concerning a treaty concluded by
other States, 684
concerning extradited criminals,
509
, definition of, 221
interest of humanity, 229
maintaining the balance of power,
141, 380, 399
- Monroe Doctrine, 72, 231, 232, 233
.on behalf of citizens abroad, 495
right of, 222, 223
Inviolability :
bearers of despatches, 619
commissaries, 619
consular buildings, 601
consuls in non-Christian States,
604
diplomatic envoys, 560-663
members of international com-
missions, 622
monarohs abroad, 531
presidents of republics, 535-537
public political agents, 617
Ionian Islands, international positioo
of, 168, 378
INDEX
785
Irish Sea, 348
Itnerins, 58
Isabella, Queen of Spain, 528, 534
Island, new-bom, 391, 393
Italy as a Great Power, 75, 199
'Law of Guaranty' ocmoeming
the Pope, 183
Jaoqnin, Cilestin and Jules, case of,
516
Jade Bay, 344
James I., 409, 573
Japan, 77, 199
aliens in, 494
conflict with United States con-
- ceming Japanese school children
in California, 247
consuls in, 605
inland sea of, 414
position in Family of Nations, 34
Bussia's war wiUi, 80
treaty of alliance with Great Bri-
tain, 669
Janrez, occupation of, 219
Jay, John, 133
Jay Treaty, article concerning privi-
leges of commissioners, 621
Jenkins, SirLeoIine, 104
Jenkinson, 119
Jews:
exclusion from Gibraltar, 369
rules of, for international relations,
49
treatment in Boumania and Russia,
485,490
treaties in favour of, 739
Jovmal TSSgraphiqu^ 626
Juan de Faoa, Strait of, 347
Jvges Consuls, 588
Eainardgi, Xreaty of, 544
Ealkstein, case of Colonel ron, 567
ECampts, 120
Kardis, Peace Treaty of, 67
Kattegat, the, 349
Kaufmann, 193
Keiley, case of, 553
Kelnus, 308
Kent-, James, 110, 158
Kertch, Strait of, 349, 414
Khedive of Egypt, 605
Kiaoohau leased to Germany, 309, 379
Kiel Canal, navigation on, S@9
King's Chamber, 344
VOL. I. 3
Kluber, Johann Ludwig, 111, 114, 120
Kohler, 121
Korea:
extinction of treaties of, 147
merged in Japan, 143, 146, 378
Koszta, case of Martin, 486
Krohn, Captain von, case of, 576
Labour. iSeeoZso International Labour
Office
international convention, 279, 288
La Fontaine, 121
Lado Enclave, leased to Congo Free
State, 310
Laibaoh, Congress of, 72
Lakes, 322, 323, 362
Lamirande, case of, 511
Landlocked seas, 322, 323, 362
Language of diplomacy, 541
Vienna Congress on, 542
Latvia, international position of, 36
L'Aubespin^, case of, 562
Lausanne, Peace Treaty of, 83, 151
Law, definition of, 3, 6
Law of Guaranty, the Italian, 182
Law of Nations. See International
Law of Nature. 101, 114
Law-making treaties, 16, 22, 654,
705-717
Lawrence, Thomas Joseph, 109, 117
League of Nations. See also Austrian
Peace Treaty; German Peace
Treaty ; International Court of
Justice ; International Labour
Office
advisory commissions of, 624
aerial navigation and, 356, 358
alliances under, 736
arbitration for settlement of dis-
putes by, 14, 282, 297-298
armaments, reduction of, 278, 284
Arms and Ammunition Office, 628,
715-717
Assembly of, 272, 273
relations between Council and,
276
bureau attached to, 290
character of, 268
commissions of inquiry of, 732
constitution of, 270
defects of, 297-300
merits of, 300-301
objections to, 291-296
council of, 273-277
relations between Assembly and,
276
D
786
INTERNATIONAL LAW
League of Nations [eontmued] —
covenant, amendments to, 271
commercial proviaionB of, 290
drafting of, 266
disease, prevention and control of,
290
Dominions as members of, 170
expenses of, 277, 290
expulsion from, 267, 284
functions of, 11, 280-291
guarantees against aggression, 285,
296, 738
international commissions under
direction of, 621
international personality of, 123
intervention by, 299
labour convention, 279, 288
liquor traffic in Africa, 289, 629
mandat<»y guardianship by, 279,
288, 301
membership of, 266, 272, 297
opium traffic, 289
origin of, 264
permanent secretariat, 277-278
reception of envoys at, 556
restriction of action of, 281
right of legation, 543
Saar Basin Governing Commission,
466
St. Germain Convention (1919), 289
seat of, 270
treaties, abrogation of, 286-287
publication of, 285
reconsideration of, 299
United States movement for estab-
lishing, 265
white slave traffic, 289
withdrawal from, 267
League of Nations Union, 265
Lease of territory, 379
Lebanon, the, 449
Legation :
combined, 551
institution of, 60, 538-542
members of, 577-581
papers of the, 584
right of, 542-545
Legati a latere or de latere, 547
Leget WMuenses, 59
Legitimacy, doctrine of, 72
Legnano, 98
Leibnitz, 118
Liae-majeeU, 514, 515
extradition for, 523
Lesseps, 326
Levi, Leone, 39, 109
Liberia, entrance into Family of
Nations, 33
German treaties with, abrogated,
721
Idchtenstein, international position
of, 188, 552
Lieber, 38
Lighthouses, 341
Lincoln, assassination of, 518, 521
Liqnor Traffic, Conventions concern-
ing, 289, 443, 710, 711
Lithuania, international position of,
36
Liszt, Franz von, 111, 117
Literature, Union for the protection
of works of, 78, 626, 757
Locke, John, 130
Log book, 424
Lombardy, ceded in 1859 by Austria
to France, 380
Lomonaco, Giovanni, 112
London :
Conference of (1867), 228
Conference of (1871), 76, 223, 692
Conference of (1912), concerning
wireless telegraphy, 312, 449
Convention of (1841), 350
Convention of (1884), 210
Convention of (1901), ooneeming
fisheries, 446
Convention of (1904), 80, 368
Declaration of, 42, 85, 88, 650,
675, 703, 715
Declaration of, concerning Egypt
and Morocco, 327
Naval Conference of, 41, 46, 84,
85
Treaty (1831), 177, 706
Treaty (1839), 177
Treaty (1840), 669
Treaty (1841), 350, 462
Treaty (1863), 225
Treaty (1867), 178, 707
Treaty (1871), 325, 351, 418
Treaty (1883), 622
Treaty (1906), 81, 181
Treaty (1913), 83
Lorenzelli, 186
Lorimer, James, 109, 116
Lorraine, 382
restored to France, 720
Loss of territory, 403
Louis XI. of France, 129
Louis XIV. of France, 66, 67
Louisiana boundary dispute, 387
Louter, J., 114
Lusitania torpedoed, 89
Luxemburg, international position
of, 188
neutralisation of, 175, 178, 380,
708, 740
neutrality violated, 178, 221
neutralisation rescinded, 178, 719
Lymoon Pass, 347
DTDEX
787
M
Mackintoeh, Sir James, 513
McGregor, adventnrer, 217
MXeod, case of, 609
Madagascar, annexed by France, 168,
651
Madiedo, M. M., 112
Madison, J., 133
Magdaleioa Bay case, 233
Magellan, Stoaita of, 349, 679
Mauie, Sir Henry Snmner, 109
Maine, river, 317
Malloy, 119
Mancini, 38
Mandate. Bee Leagoe of Nations
Manifest of cargo, 424
Mankind, lights of, 38, 461
Mamiheim C^mTention (1868), 623
Manning, William Oke, 109, 114
Matdyck, port of, 701
Mare claiuman, 411
Mare liberum, 100, 410
Marini, Antoine, 61
Maritime belt, 332-341, 418
bonndary line of, 362
Maritime ceremonials, 209, 337, 409,
418
Maritime Conference :
Bmssels, 426
London, 41, 46, 84, 85, 426
Washinigton, 426
Maritime Conventions Acts, 428, 432
Maritime office at Zanzibar, 627
Marmora Sea, 413
Martens, Charles de, 107
Martens, F. von, 113, 116
Martens, G. F. von, 107, 118, 412
Mary, Queen, 409
Matches. See White Phosphorus
Matches
Matzen, H., 113
Mazey, EUwin, 110, 117
Measures. See Weights and Mea-
sures
Mediation, 222
Mediterranean, maintenance of ttatut
quo in the, 742
Mehemet Ali, 669
Memel, international position of, 720
Memoire, definition of, 653
Menai Strait, 347
Mendoza, Spanish ambassador, 410
case of, 562
Men-of-war :
admittance to maritime belt, 338
admittance to golfs, 346
admittance to straits, 349
asylum of, 615
excluded from the Bosphoms, 350
Men-of-war [continued) —
position in foreign waters, 311,
612, 613, 614
position of crew on land abroad,
616
position on the open sea, 417, 418
proof of character, 612
powers over mcFchantmen, 425,
428,430
revolt in, 612
shipwrecked, 612
Merchantmen. See Merchant ships ;
Navigation
Merchant Sliipping Amendment Act
(1862), 425
Merchant Shipping Act (1873), 425
Merchant Shipping Act (1894), 422,
424,425,430
Merchant Shipping Act (1906), 422,
424
Merchant ships, conversion into war
ships, 613, 713
foreign, jurisdiction over, 339
Merger of States, 143, 146, 377
Mfoignhac, A., Ill, 117
Mesopotamia, state of, 191
mandatory guardianship of, 288
Messina, Straits of, 347
Metric system. Convention concern-
ing, 78, 626, 762
Mettemich, Prince, 326
Meuse, the, 316
Mexico, 83
Carranza's government of, 219
Mines:
Convention concerning, 714
submarine in the submil of the sea
bed, 453
Ministers Plenipotentiary, 547
Ministers B«sident, 548, 706
Minorities, treaties for protection of.
728
Miramichi, Bay of, 343
Mimss, 120
Mohammedan States, 31
consuls in, 604
Mohl, 120
Moldau, river, 318
Moldavia, 544
Monaco, international position of
167, 188
Monaldeschi, case of, 533
Monarchs. See also Heads of States
acts of violence committed by
foreign, 533
consideration due to, 531
deposed or abdicated, 534
exterritoriality of, 532
position of wife of, 532
residence of, 532
788
INTERNATIONAL LAW
Monarohs (coMinutd) —
retinue of, abroad, 533
sovereignty of, 531
subjeots or servants of foreign
Powers, 535
titles of, 202
travelling inoognito, 533
Monetary Conventions, 78, 762
Monetary Oonferenoe, International,
762
Monroe Doctrine, 72, 231, 232, 233
Montagnini, case of, 186
Montenegro :
future position of, 36, 188
independence of, 76
restrictions upon, 212, 213, 420
Momiezuma, the, 436
Monti, case of Marquis de, 577
Moore, John Bassett, 110, 117
Moors in Gibraltar, 369
Morava, river, 318
Moray Firth, case of the, 345
Moresnet, 363
Belgian sovereignty over, 719
Morocco :
coastal zone in, 368
French protectorate, 81, 168
German treaties relating to, abro-
gated, 721
independence of, 81
Moselle, river, 317, 319
Moser, 106
Most -favoured -nation clause, 679,
703, 723, 749
United States interpretation of,
750
Motor vehicles, circulation of, 86,
757
Motor Car (International Circulation)
Act, 757
Mountains, boundary, 362
Mulhouse merged in 1798 in France,
378
Municipal Law :
compulsory rules of, 28
conflict between international law
and, 29
conflict with treaty obligations,
696, 704
customary rule over open sea, 340
distinguished from law in general,
7, 8, 12
distinguished from international
law, 25
extradition and, 505
offences against foreign States and,
205, 259
Munitions of War. Set Arms and
ammunition
Munater, Peace Treaty of, 316
Murdered rulers, 518, 521
Muscat Dhows, case of the, 633
Muster Bolls, 423
Mutinous crew, 437
N
Names of vessels, 424, 443
Napoleon L, 69, 212
Napoleon HI., 73, 516
Narrow Seas :
sovereignty of Great Britain over
the, 348, 408
Nassau, subjugation of, 396
National. See Citizen
Nationality :
absent, 481-487
acquisition of, 381, 398, 468
aircraft, 355
British Nationality and Status of
AHens Act, 424, 469, 471, 475-481
conception of, 463
corporations, 463
difficulties arising from double and
absent nationalities, 485
double, 481, 482-487
expiration of, 472
function of, 465
international law and, 461
loss of, 471
principle of, 73, 95
Natural boundaries, 360, 363
Natural boundaries senau politico, 363
Naturalisation, 209 :
acquisition of nationality by, 469
British, 476-481
conception of, 474
conditions of, 475
loss of nationality through, 473,
476
object of, 475
revocation of, 478
through grant on application, 471
' Naturalists,' the, 104
Nauru, mandatory guardianship of,
288
Naval Conference of London, 41, 46,
84-85
Naval war code of the United States,
41
Navigation. See aiao Aerial navi-
gation; Coasting-trade; Merchant
Shipping ; Vessels
Commissions in the interest of, 621
Congo, 623
Danube, 621
Elbe, 623
gulfs and bays, 346
Kiel Canal, 329
INDEX
789
Navigation (continued) —
Magellan Straits, 349
Niemen, 623
Oder, 623
open sea, 411, 417
Bhine, 623
rivers, 315-321, 706 •"
straits, 348
Suez Oanal, 623
supervised by conauls, 598
within and through the maritime
belt, 337, 418
Navigation Act, 747
Neokar, river, 317
Negro Republics, 33
Nemo plus jurit transferre potest,
quam ipie hdbet, 379
Nemo potest exuere patriam, 476
Ne quis invitus civitate mutetur, neve
in civitate ma/neat invitus, 476
Netherlands, independent state, 66,
70
revolt of, 404
NeuiUy, Peace Treaty of, 92, 727
Neutralisation of the Black Sea, 76,
325, 417, 692
Neutralised States, 171-179
cession of territory, 377
defensive alliances of, 735
State servitudes, 367, 369
Neutral Powers in Naval War, Con-
vention concerning the rights
and duties of, 714
Newfoundland fishery dispute, 368
New Hebrides, international position
of, 308
New Zealand, maritime flag of, 420
Nicaragua, Bryan-Chamorro Treaty,
224
Nicholas, Czar, abdication of, 89
Niemen, river, 318, 623
Niemeyer, 120, 121
Niger, river, 78, 317, 319, 709
Night work for women, convention
for the prohibition of, 86, 761
Nikitsohenkow, ease of, 567
Nillins, case of, 507
Non-Christian States, 179-181
consuls in, 604-606
Non-extradition :
aMentat clause of, 516, 522
principle of, 512-523
rationale for, 519
Russian proposal concerning, 517,
522
Swiss solution of, 517, 522
North Atlantic coast fisheries, case
of, 343, 348, 365, 368, 369
North Channel, 348
North Pole, 384
North Sea :
hydrographic and biologic investi-
gation of, 85, 771
liquor traffic convention, 443
maintenance of status quo in the,
743
North Sea fisheries, 408, 429, 442
Convention for the regulation of,
442
Norway, international position of,
80, 738
Notarial functions :
consuls', 599
diplomatic envoys', 558
Note verbal, definition of, 653
Nuncios, 547
Nymeguen, Treaty of, 67
Nys, Ernest, 113, 117, 120
Nystaedt, Treaty of, 67
O
Oath as a means of securing perform-
ance of treaties, 664, 681
Obscene pubUoations, 86, 767
Observation, envoy's function of,
557
Occupation of territory, 383-390
conception of, 383
consequences of, 389
extent of, 386
how effected, 384
notification of, 386
object of, 383
performance of treaties enforced
by, 608, 682, 725
Oder, river, 318, 623
Office central dee transports interna-
tionaux, 627
Offices, international, 625-629
Official publications, 763
016ron, Laws of, 59
Oliva, Peace Treaty of, 67
Olivart, Marquis de, 112, 119, 120
Omnia rex imperio poisidet, singtUi
dominio, 306, 374
Omnis conventio intelligitur rebus sic
stantibus, 287, 301
Ompteda, 120
Ontario, Lake of, 323, 324
Open sea. See also Vessels, 407
ceremonials on, 205, 409, 418
claims to sovereignty over parts of,
407
collisions on, 425-428
conception of, 413
convention for safety of life on,
426
fisheries in the, 441-446
790
INTERNATIONAL LAW
Open sea {continued) —
freedom of, 59, 236, 367, 407-412,
415-421
in time of war, 417
jurisdiction on, 239, 421-433
legal order on, 416
navigation on, 411, 418
neutralisation of parts, 417
piracy on, 433-440
powers of men-of-war over mer-
chantmen on the, 428, 430
rationale for freedom of, 420
right of pursuit on, 429
salvage on, 86, 426, 432
shipwreck and distress on, 432
subsoil beneath the sea bed, 384,
451-455
telegraph cables in, 446-448
verification of flag on, 428, 430
wireless telegraphy on the, 448-
451
Operation of nature as a mode of
losing territory, 404
Opium traffic, 86, 289
International convention, 765
Oppenheim, Heinrich Bernard, 111
Oppenheim, L., 110, 121
Option : decided by nationality, 381,
472
Orange Free State, 143, 396, 397
Oregon Boundary dispute, 387
Otlet, 121
Pacta sunt eervcmda, 689
Pacta tertiia nee nocent nee prosunt,
678
Pa^um de co/ntrahendo, 660
Paladini, Salvatore, case of, 507
Palais de Venice, confiscated during
World War, 566
Palestine, mandatory guardianship
of, 288
Panama :
international position of the Re-
public, 211, 331, 404
intervention in, 225
Panama Canal, 310, 329-332, 679,
712
Pan-Amerioan Conferences, 39, 77,
84, 396
Pan-Amerioan Union, 626, 769-770
Pando, Job6 Maria de, 112
Panther, case of the, 256
Papal Nuncio. See Nuncio.
Papal States, 182, 554
Papen, Captain von, case of, 583
Papoviliev, M., 114
Par in parem non habet imperium,
197, 532, 564
Paris :
Convention for the protection of
submarine telegraph cables, 447
Declaration of, 3, 10, 73, 74, 696,
706
Peace Conference of (1919), 542,
622 752
Peace' Treaty of (1763), 68, 212,
406
Peace Treaty of (1815), 370
Peace Treaty of (1856), 34, 74, 76,
223, 228, 317, 351, 368, 417,
622, 679
Peace Treaty of (1898), 77
Seal Fisheries Arbitration Tribunal
(1893), 445
Parliaments, injurious attitude of,
253
Participation of third States in
treaties : 678-680
accession, 684
adhesion, 685
good offices and mediation, 684
interest and participation dis-
tinguished, 683
intervention, 684
Parties to alliances, 735
Parties to treaties, 656, 659-661
Parts of treaties, 666
Part sovereign States, 161, 189, 367,
642
Passage, envoys' right of, 574
Passports :
courier's, 581
diplomatic envoy's, 551, 558, 684
vessels', 423
Peace Conferences at the Hague.
See Hague.
Peace Treaty of :
Aix-la-Chapelle (1668), 66
Aix-la-ChapeUe (1748), 68, 212 •
Breda, 67
Brest litovsk, 90, 721
Bucharest, 83, 90
Carlowitz, 67
Christiania, 80, 156
Constantinople, 83
Copenhagen, 67
Frankfort, 382
Hubertsburg, 68
Kainardgi (1774), 544
Kardis, 67
Lausanne, 83, 151
London, 83
Mlinster, 316
Neuilly, 92, 727
Nymeguen, 67
Nystaedt, 67
INDEX
791
Peace Treaty of (coniinued) —
Oliva, 67
Paris (1763), 68, 212, 406
(1815), 370
(1856), 34, 74, 76, 223, 228, 317,
351, 368, 417, 622, 679
(1898), 77
Prague (1866), 458
Pyrenees, 67
Bastadt and Baden, 67
Boeskild, 67
Ryswiok, 67
St. Germain, 92, 725
San Stefano, 76
Seovd, 80
Shimonoseki, 77
Stockholm, 80, 155
TUsit, 212, 216
Utrecht, 67, 68, 212, 228, 368, 369,
701
Versailles (1783), 69, 368
(1919) 91, 718-725
language used in text of, 542
Westminster (1674), 67, 411
Westphalia, 65, 69, 228, 705
Pearl fishery off Ceylon and in the
Persian GuU , 441
Peary, Admiral, 384
Pekin, attack on foreign legations at,
79
Pelagic Sealing Conference, 445,
768
Persia, independence of, 81
international position of, 35, 181
Persian Gulf, pearl fishery in the,
441
Personal supremacy :
consequences of, 207
definition of, 206
restrictions upon, 213
violations of, 208
Personal union of States, 154
Pertile, Gian Battista, 112
Pessoa, Epitacio, 40
Petit cabotage, 746
Pharmacopceial formulas, unification
of, 85, 765
Philip n. of Spain, 409
Philippine Islands, 77
Phillimore, Sir Robert, 109, 115, 340,
348, 369
Phosphorus. See White Phosphorus
Phylloxera conventions, 78, 760
Physically impossible obligations,
662
PiMeUdvre, Robert, 111, 117
Piepenbrink, August, case of, 486
Pierantoni, Augusto, 112
Pillau, Alliance of, 664
Pillet, 193
Pinkney, American commissioner,
621
Piracy, 239, 246, 433-440
definition of, 434
jurisdiction over pirates, 438
punishment of, 439
pursuit of pirates into the terri-
torial maritime belt, 439
Pirata rum mvtat dominium, 439
Plague. Set Sanitary Conventions
Platen-Hallermund, case of Count,
398
Plebiscite concerning cession of ter-
ritory, 381, 458
Pledge, 309, 379, 682
Pleins pouvoira, 550
Podiebrad, 61
PoeUtz, Karl Heinrich Ludwig, 111
Poland, partition of, 69
revolution in 1830, 513
state of, 36, 71, 720
treaty between Allied Powers and,
728
Police control in maritime belt,
336, 338
Political agents :
public, 617
secret, 617
spies, 618
Political crime, conception of, 512-
522
Political criminals, non-extradition
of, 509, 512-523
Poison, Archer, 109
Pomeroy, John N., 110
Pope, violation of, 187
position of the, 61, 75, 181-188.
See aZso Holy See
Port Arthur leased to Russia, 309,
379
Portena, the, 436
Porto Rico, 77
Portugal :
international position of, 82
parts of the open sea claimed by,
408
passage of troops through territory
of, 371
republic proclaimed in, 82
'Positivists,' the, 105, 114, 115
Postal Union, Universal, 78, 754
Powers of men-of-war over merchant-
men of all nations, 425, 428,
430
Pradier-Fod^r6, P., 109, 110, 116
Prague, Peace Treaty of (1866), 458
Precedence, envoys', 546
states', 201
Predicates of heads of States, 203
Prescription, 400-403
792
INTEENATIONAL LAW
Pr6a4ance, droit de, 201
Presidents of republics :
not sovereigns, 535
position of, 536-537
Private International Law :
conception of, 2
Hague Conventions concerning,
78, 768, 769
Privateer, 434-435
Privateering abolished by Declara-
tion of Paris, 74, 696
Privileges of :
consuls, 601
couriers, 580
diplomatic envoys, 559
members of legation, 578
Proconsul, 593
Projectiles, convention concerning,
712, 714
' Proposal,' definition of, 653
Protection :
citizens abroad, 227, 465, 494, 598
envoy's function of, 557
treaties of, 728, 743
Protectorate, 165, 198, 377
occupation preceded by, 388
Prot6g6s, 466
Protest as an international transac-
tion, 650
Protestant States, 552'
Protocol, definition of, 653, 665
secret, 669
Provision, Lettre de, 595
Prussia becomes a Great Power, 69
Pruth, river, 318
Pseudo-guarantees, 741-743
Public Health, international office of,
628, 765
Public political agents, 617
Publications, obscene,' 86, 767
official, 763
Pufendorf, 3, 104, 130
Punctationes, 659
Pursuit into the open sea, right of,
429
Pyrenees, Peace of the, 67
Q
Quabbe, on guarantee treaties, 743
Qui in territorio meo eat, etiam mens
aubditua est, 307
Quidquid est in territorio est etiam de
territorio, 207, 307
R
Rachel, 105
Radiotelegraphy. See Wireless Tele-
graphy
Railway Transports and Freights,
Union concerning, 78, 756
Office of, 627
Rank of States, 200
Rastadt and Baden, Peace Treaty of,
67
Ratification of treaties :
conception of, 667
effect of, 676
exceptions to necessity for, 669-
670
form of, 672
partial or conditional, 674-675
power of, 673
rationale for, 668
refusal of, 671
sptice of time for, 670
validity of, 673
Rationale for the freedom of the open
sea 420
Real Union of States, 142, 153, 154
Rebus tic stantibus, clause of, 287,
371, 372, 689-691
Recall of diplomatic envoys, 582
Reception of aliens :
conditional, 490
not obligatory, 488
Reception of diplomatic envoys, 552-
556
Recognition : ^-^'
change in the form of government,
139
change in the title of a State, 139.
141
insurgents as a belligerent Power.
126, 137
new head of a State, 5^8
State through appointment of con-
sul, 596
States, 134-139, 373
Reconduction of foreigners, 501
Reconfirmation of treaties, 699
Becouste, droit de, 440
Red Indians, 37 --
Redintegration, acquisition of na-
tionality by, 471
of treaties, 699
Regents, 534
Registration of Aliens. See Aliens
Reign of Terror, 513
Release, loss of nationality through,
472
Religious disabilities, 213, 458, 462
in Roumania, 485
Renewal of treaties, 699
Renunciation as an international
transaction, 651
Renunciation of a treaty, 687
Renvoi, droit de, 501
Reprisals, 250, 495
y
INDEX
793
Republics :
American, 769
Italian, 540
Negro, 33
Presidents of, 535-537
Bes extra commercium, 416
Res transit cum $uo onere, 147, 379
Rescission of treaties, 687
Reiponsales, 540
Retinue of diplomatic envoys, 577-581
of monarohs abroad, 533
Retorsion, 246, 489, 495, 499
Betraite, droit de, 497
Revenue Laws, 340
Revolt as a mode of losing territory,
404
Rhine, river, 317, 319, 320, 363, 368
fortifications on, 719
revision of rules of navigation, 623
Rhodian laws, 59
Ricci-Busatti, 121
Rights of mankind, 38, 461
Rights of Nations, Declaration of,
37, 69, 193
Rioters, rigltment of the Institute
of intematiohal Law concerning
Acts of, 262
responsibility for acts of, 260
Ripperda, case of the Duke of, 565
Riquelme, Antonio, 112
Rivers. See also Navigation, 314-322
abandoned beds of, 391, 393
African, 319
boundary, 361
international, 71, 315, 316, 317,
318, 320, 706
South American, 319
utilisation of the flow of, 321
Rivier, Alphonse, 113, 117, 120
Roeskild, Peace Treaty of, 67
RoUn, 120
Roman Catholic Church, 7. iSee also
Pope, position of
Roman Law, 58, 374, 400, 416
Romans, their rules for international
relations, 54
Rome, Congress at, 754
Rosny, Marquis de. See Sully, Duo
de
Ross, case of Bishop, 545
Roumania :
Convention of 1877 with Russia,
735
independence of, 76
restriction upon, 213
treatment of Jews in, 485
treaty between Allied Powers and,
728
Rousseau, J. J., 131
Rousset, 118
Royal honours. States enjoying, 201
Ruh, Gottfried, case of, 579
Rumelia, Eastern, 76
Rush-Bagot Treaty, 664
Russell, Sir Charles, 341
Russia, dissolution of, 36
international position of, 189, 191
member of Family of Nations, 67
revolution in, 89
sale of American territory by, 379
Russian ambassador, case;of, 561
Rutherford, 105
Rymer, 118
Ryswick, Peace Treaty of, 67
Bk, case of Don Pantaleon, 580
Saalfeld, Friedrich, 111
Saar Basin, government of, by League
of Nations, 719
protection of inhabitants, 466, 720
Saokville, Lord, case of, 558
St. Croix, sale of island of, 379
St. George's Channel, 348
St. Germain Conventions, 289, 319,
429, 709, 710, 715
Peace Treaty of, 92, 725
St. John, sale of island of, 379
St. Lawrence, navigation on the river,
320
St. Petersburg :
Convention of, 755
Declaration of, 75, 649, 708
Treaty of 1907, 181
St. Thomas, sale of island of, 379
Sale of State territory, 379
Salvage, 86, 426, 432
Samoa, mandatory guardianship of,
288
San Domingo, 33
independence restricted, 211
San Marino, international position of,
167, 189
title of, 202
San Stef ano. Peace Treaty of, 76, 662,
684
Sandona, Giuseppe, 112
Sanitary Conventions, 78, 764
Sanitary laws, 340
Sanitation, International Council of,
at Bucharest, 624
Santa Lucia, case of, 405
Sarawak, 373
Sarpi, Paolo, 411
Savarkar, case of, 510
Savoy, 370
Scheldt, river, 316
Schested, Mogen, case of, 578
794
INTERNATIONAL LAW
Sohleswig, frontier between Denmark
and Germany in, 720
Sohmalz, Theodor, 111
Sohmauss, 118
Sohmelzing, JuliuB, 111
SohnaeWll, case of, 619
Schools of International Jurists, 96,
104
Scientific Research, Unions in the
interest of, 770, 771
Scott, James Brown, 121
Scott, Sir William. See Stowell, Lord
Sea. See Open sea
Sea-brief, 423
Sea-letter, 423
Seal fisheries in the Behring Sea, 444
Seal Fisheries (North Pacific) Act,
1912, 446
Sealing Conference, pelagic, 445, 768
Secret political agents, 817
Secret protocol, 669
Secretaries of Legation, 577
Secretary for Foreign Affairs, 537
Seismologio Association, Interna-
tional, 771
Selden, John, 104, 411
Self-preservation, 214-221, 248
interventions for, 227
Semi sovereign. See Half sovereign
States ; Part sovereign States
Seneca, 306, 374
Seoul, Peace of, 80
Serb-Oroat-Slovene State :
formation of, 36
recognition of, 726
treaty between Allied Powers and,
728
Serbia :
independence of, 76
restricted, 213
restrictions abrogated, 213
Servitudes, 3^^-372
Servittis in faciendo consistere nequit,
370
Servitutes juris gentium naturcUee, 364
Servitutes juris gentium voluntariae,
364
Shantung, German rights in, re-
nounced, 721
Shenandoah, case of the, 436
Shimonoseki, Peace Treaty of, 77,
684
Ship. iSee Vessels
Ship-papers, 423, 598
Shipwreck on the open sea, 432
Siam:
German treaties with, abrogated,
721
international position of, 35, 181
Signals, code of, 425, 426
Slave-trade, See also Bmssels Anti-
Slavery Conference, 71, 246, 462,
710
conventions concerning, 767
Smith, F. E., 110
Solent, the, 347
Solferino, battle of, 657
Sorel, Albert, 110
Soudan, international position of,
163, 190, 308
Soul^, case of, 574
Sound dues, 349
Sources of International Law, 19
South African Republic, 79, 143, 163,
210, 396, 397
alliance with the Orange Free
State, 735
diplomatic envoys, 544
Sovereignty :
acquisition of, 374
air, 355
conception of, 127, 129, 206
distinguished from suzerainty, 162
divisibility of sovereignty con-
tested, 129
history of meaning of, 129-133
maritime, 410
monarohs', 531
Spain, insurrection in, 435
Spheres of influence, 389
Spies, 618
Spirit trade. See alto Liquor traffic,
African, 710
Sponsio, 657
Springer, case of, 665
State, conception of, 126
State property. See State territory
States :
African, 190
American, 189-190
changes in the conditions of, 140-
144
confederated, 156
dignity of, 203-206, 559
equality of, 19, 195, 196
European, 188
evolved from law, 12
extinction of, 143, 586
federal, 149, 153, 167, 160, 198, 311
full and not-full sovereign, 125, 127
half sovereign, 189, 198, 367
heads of. See Heads of States
independence of, 206
intercourse of, 192, 195, 235-237
international position of, after
World War, 188-191, 200
intervention between, 221-234
jurisdiction of, 237-241
League of Nations distinguished
from, 268
1NDE3J
795
States {continued) —
merger of, 143, 146, 377
neutralised, 143, 171-179, 369
new-bom, 372
non-Christian, 168, 179-181
Papal, 182, 554
part sovereign, 161, 189, 198, 367
personal supremacy of, 206
personal union of, 154
possessing royal honours, 201
precedence of, 201
protected, 165, 198, 377
rank of, 200
real union of, 142, 153, 154
recognition of, 134-139
responsibility of, 242-263
self-preservation of, 214-221
suzerain, 161, 198, 307
territorial supremacy of, 206
titles of, 139, 141, 202
vassal, 161, 307
violation of, 214
State servitudes, 364-372
State territory :
accretion to, 390-394
administration of by foreign
Power, 309
boundaries, 360-364
canals, 326-332
cession of, 375, 376, 395
definition of, 305
difierent kinds of, 306
different parts of, 311
dismembered, 306
exchanges of, 379
gulfs and bays, 342
importance of, 307
inalienability of parts of, 313
integrate, 306
lease of, 379
lighthouses, 341,
loss of, 403-406
maritime belt, 333
modes of acquiring, 372-375
pledge of, 379
sale of, 379
servitudes on, 364-372
straits, 347
Status quo :
Baltic, 743
Mediterranean, 742
North Sea, 743
treaties guaranteeing maintenance
of, 741-743
Stettin, Bay of, 344
Stockholm, Treaty of, 80, 155
Stockton, C. H., 41, 110, 118
Stoerk, 120
Story, 158
StoweU, Lord, 115, 393
Straits, 347
boundary line in, 362
Great Belt, 347
Juan de Fuoa, 347
Kertoh, 349, 414
Lymoon Pass, 347
Magellan, 349
Menai, 347
Messina, 347
Solent, 347
Strupp, 119, 121
Stuart Pretender, the, 369
Suarez, S. Planas,. 99, 113
Subjugation :
acquisition of nationality through,
398, 471
conception of, 394
consequences of, 397
distinguished from occupation, 395
enemy territory, 396
justification of, 396
veto by third Powers, 399
Subsoil, territorial, 312
beneath the sea bed, 384, 451-455
Substitution, loss of nationality
through, 473
Succession of States, 144-152
Suez Canal, 326, 623, 710, 722
Sugar Convention, 624, 759
Office of, 627
Sujets mixtes, 483
Sully, proposed division of Europe,
62
Sully, case of Duo de, 572
Sun Yat Sen, case of, 567
Suzerainty, conception of, 162
Sweden, her sovereignty over the
Baltic, 408
Sweden-Norway, union of, 155
union dissolved, 80, 155
Swiss Confederation reorganised, 66,
71
Switzerland, neutralisation of, 71,
175, 176, 189, 706
member-States conclude treaties,
656
without a maritime flag, 419
Syria, mandatory guardianship of, 288
state of, 191
Tabula Amalfitana, 59
Tavignano, case of the, 633
Tarnowski, Count, case of, 575
Taylor, Hannis, 110, 117, 348
Telegraph cables :
Convention for the protection of,
429, 447
in the open sea, 446-443
796
INTEENATIONAL LAW
Telegraph Union, International, 450,
626, 755
Telegraphy, wireless. See Wireless
Telegraphy
Terrae potestas fmUuT vhi finitur
armorum vis, 333
Territorial atmosphere, 312, 353
Territorial supremacy :
aliens snbjected to, 492
consequences of, 207
definition of, 206
restrictions upon, 211, 238, 364, 368
violations of, 208
Territorial waters, 313
contrasted with open sea, 413
gulfs and bays, 342-344
Territorial Waters Jurisdiction Act,
30, 335, 338, 348
TerrUorium dansum, 306
Territorium domincuns, 366
Territcriwm sermem, 366
Territory. See State territory
Tertor, 105
Tezkeieh, 486
Thalweg, the, 361, 394
Thaya, river, 318
Thomasins, 105
Tibet, Chinese protectorate, 82
international position of, 191
Tientsin, German concession of, 310,
721
Tilsit, Peace of, 212, 216
Titanic disaster, 426
Titles of States, 139, 141, 202
Togoland, mandatory guardianship
of, 288
Toll, maritime, 337, 409
Tonrkmantschai, Treaty of, 324
Tonrville, case oi, 506
Trading Consular Officers, 391
Tradition of ceded territory, 379
Transactions:
declarations, 649
different kinds of, 648
notifications, 649
protests, 650
renunciation, 651
Transports, Central Office of Inter-
national, 627
Union concerning, 78, 756
TransvaaL See South African Be-
pnblic
Trawling in Prohibited Areas Pre-
vention Act, 346
Treaties. See alto International
Court of Arbitration ; League of
Nations ; Peace Treaties
accession and adhesion to, 684, 685
alliance, 733, 734
binding force of, 23, 654, 657, 658
Treaties {eontitmed) — ^
cancellation of, 695
cession, 381
collections of, 118
commercial and consular, 597, 601,'
744-751
conception of , 652
conatitntional restrictions conoem-
ing the trealy-making power,
658 ,
different kinds of, 633
distinction between agreements
and, 663-666
effect of, 677-680
expiration and dissolution of, 147,
686-693
extradition, 303-504, 523
form of, 663
fulfilment at, 686
guarantee, 574
international law based upon, 22
interpretation of, 700-704
law-making, 16, 22, 654, 665, 705-
717
means of securing performance of,
608,681
most-favonted-nation clause, 679,
703, 723. 749
objects of, 661-663
pactum de contrahendo, 660
participation of third States in,
678-680, 683-685
parties to, 656, 659-661
parts of, 666
power of making, 636-659
proteetion,'728, 743
psendo-gnarantees, 741
punetaiioneg, 659
ratification of, 667-676
rescission of, 687
reconfirmation of, 699
redintegration of, 699
regarding spheres of infiuenoe, 389
renewal of, 698
renuiiciation'*of, 687
subddy, 736
substitution of, 687
violation of, 696
voidance of, 694-695
withdrawal from, 687
Triepel, 118
Tripoli, annexation of by Italy, 397
ceded to Italy, 83
Troppan, Congress of, 72
Tucker, George Fox, 110
Tunis, international position of, 168
Turkey, aliens in, 493
German claims in abandoned, 722
international position of, 180
Peace Treaty with, 93, 191
INDEX
797
Turkey {eontinued)—
reception into the Family of Na-
tions through Peace Treaty of
Paris (1856), 34, 74
Young Turk movement in, 82
Twiss, Sir Travers, 104, 115, 327,
340
U
Ullmann, E., Ill, 117, 369
UlpianuB, 407
Unions concerning :
Agriculture, 760
birds useful to agriculture, 761
Cholera and plague, 764
Coinage, 762
Copyright, 757
Customs tariffs publication, 758
Geodetic work, 770
Hospital ships and harbour dues,
767
Humanity, 766
Hydrographio work, 771
Industrial property, 758
Literature and Art, 757
Metric system, the, 762
Motor Vehicles, 757
Night work for women, 761
Obscene publications, 767
Official publications, 763
Opium, 765
Pelagic Sealing, 768
Pharmacopoeial formulas, 765
Phylloxera epidemics, 760
Post, 78, 754
Private International Law, 768
Public health, 763, 765
Badiotelegraphy, 755
Railway transport, 756
Sanitation, 763
Science, 770
Seismology, 771
Slave trade, 766
Submarine cables, 447, 755
Sugar, 759
Telegraphs, 78, 755
Transport, 756
White phosphorus, the use of, 761
White slave traffic, 767
Wild animals in Africa, 768
Unions, object of, 751
position of after the World War,
753
United Kingdom :
municipal law of, and international
law, 26
naturalisation in, 476-481
relationship to self-governing do-
minions, 170
United States of America :
arbitration treaties with, 86
become a Great Power, 75, 189,
199,404
inclusion in Family of Nations, 69
Bryan-Chamorro Treaty, 224
Civil War, 75
intervene in the revolt of Cuba, 77
League of Nations movement, 265
member-States cannot conclude
treaties, 656
municipal law and international
law, 27
naval war code of, 41
ratification of treaties by, 659, 674
Universal Postal Union, 78, 754
Universal Telegraph Union, 78, 765
Usage, distinguished from custom, 21
Usurper, 529
Utrecht, Peace of, 67, 68, 212, 228,
368, 369, 701
Vaderlcmd, case of the, 449
Varanger Fiord, 343
Vassal States, 161, 162, 307
cannot be parties to offensive alli-
ances, 163, 735 ■■ .
cannot cede territory without con-
sent of suzerain, 377
competent to appoint consuls, 595
competent to make treaties, 163,
657
competent to send public political
agents, 617
Indian, 163
Vatican, the, 183, 552. See also Pope
Vattel, 108, 412, 504
Venezuela, blockade of (1902), 79
Venice :
ceded by Austria to France, 378
sovereignty over the Adriatic Sea,
408, 411
Verdun, Treaty of, 57
Verification of flag, 428, 430
Verona, Congress of, 72
Versailles, Peace of (1783), 69, 368
(1919), 91, 718-725
Vessels. See alto Flag ; Men-of-War ;
Navigation ; Piracy ; Wireless
Telegraphy
arrest of, 431
collision of, 8^ 239, 425-428
distress of, 432, 450
names of, 424, 443
papers of, 423, 598 ^
private, chartered by Government,
614
798
INTERNATIONAL LAW
Vessels {continued) —
search of, 428, 429, 431
territorial quality of, when on the
open sea, 312, 424
visit of, 430
Veto concerning a cession of territory,
380
concerning subjugation, 399
Vexaincourt, case of, 255
Vice-consul, 592
appointment of, 595
Victor Emmanuel, King of Italy, 528
Victoria, 99
Vienna Congress (1814 and 1815),
70, 71, 175, 201, 228, 316, 370,
705
diplomatic envoys established at,
546
language of diplomaoy.observations
on, 542
Vienna, Treaty of (1878), 459
ViUa, invasion of American territory
by, 219
ViUaf ranoa,Preliminary Peace Treaty
of, 657
Virginiua, case of the, 218
Visit of vessels, 430
Vistula, river, 318
Vital change of circumstances, 688
VolkerreclUa-Indigenat, 461
W
Wabash, case of the, 351
Waddington, case of, 580
Waitz, 133
Walker, Thomas AUred, 110, 117
Wallachia 544
War. See'aUo World War, 1914-1918
cancellation of treaties by, 698
Convention concerning Laws of, 40,
41, 665, 704, 713
Convention concerning rights and
duties of neutrals in, 713
crimes, 609
draft codes of law of, 39, 76
freedom of the sea during, 417
Hague rules concerning, 10
Lawsof (U.S.A.), 38, 75
Laws of (U.S.A.) at sea, 41
position of envoys on outbreak of,
' 584
Warsaw, non-admittance of consuls
to, 594
Washbume, case of, 576
Washington :
Boundary Treaty of (1908), 363
Congress of (1890), 396
Maritime Conference of (1889), 425
Washington {continued) —
Pelagic Fishing Conference of, 445
Treaties, (1854) and (1871), oonr
ceming navigation on the river
St. Lawrence, 320
Treaty (1857) concerning the Sound
Dues, 350
Treaty (1901) concerning the
Panama Canal, 330, 712
Treaty (1903), 211, 225
Treaty (1908) concerning fisheries,
621
Treaty (1909) concerning boundary
waters, 621
Waters, territoriaL See Territorial
waters.
Webster, Mr., U.S.A., Secretary of
Foreign Afiairs, 609
Weights and Measures, International
Union of, 626, 762
Wei-Hai-Wei leaded to Great Britain,
309, 379
Welwood, William, 410
Wenok 118
Westlake, John, 110, n7, 348
Westminster, Treaty of (1674), 67,
411
Westphalen, Count von, 553
Westphalian Peace, 65, 69, 228, 705
Wharton, Francis, 110, 116
Wheaton, Henry, llO, 114
White Phosphorus, Convention for
the prohibition of the use of, 86,
761
White Phosphorus Matches Prohibi-
tion Act, 761
White Sea fisheries, 441
White slave traffic, 85, 289, 767
WUd animals in Africa, preserva-
tion of, 85, 768
Wildman, Richard, 109
William of Holland, case of Bang,
534
William II., German Emperor,
arraignment of, 722
Wilson, George Grafton, 110, 111
Windermere, Lake, 322
Wireless Telegraphy, 86, 312, 448-
451
communication at sea, 448
compulsory equipment of ships,
451
International Conference at London
(1912), 449
International Radiotelegraphic
Conventions (1906 and 1912),
312, 448, 755
International Telegraph Office at
Berne, 450
regulations concerning, 450
INDEX
799
Wisby, the maritime laws of, 59
Wismar, pledged by Sweden to
Mecklenburg, 309, 379
Wolff, Cairistian, 107
Women:
consols, 594
diplomatic envoys, 549
night work for. Convention, 761
Woolsey, Theodore D., 110, 120
Works of art. Union for the protec-
tion of, 626, 757
World War, 1914-191S. See aiso
Austrian Peace Treaty ; Ger-
man Peace Treaty ; Lea^e of
Nations
aerial navigation during, 354
Austrian liegation, seat of, confis-
cated during, 566
Belgian neutrality violated, 177,
220
causes and conduct of, 87-90
couriers' privileges abused during,
581
enemy ambassadors to Holy See,
187
international position of various
states after, 188-191, 200
World War, 1914-1918 {eontimud)—
intervention in Greece, 225
Luxemburg, neutrality violated,
221
Panama Canal during, 332
'principal allied and associated
powers,' 199
punishment for pillage during,
609
registration of aliens during, 496
submarine attack on neutral, 257
Suez Canal during, 328
Unions affected by, 753-767
Wreoh, case of Baron de, 568
Zanzibar, international position of,
168
Maritime Office at, 627
Zone for revenue and sanitary laws
extended beyond the maritime
belt, 340
Zouche, 103
Zuider Zee, 344
Priiited by T. and A. CossTiBU, Printers to His M^esty
at the BdinboTgh UniTersity Press, Scotland
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